WHAT LAWS ARE USED TO PROSECUTE
HIV
VERDICT ON A VIRUS
PUBLIC HEALTH, HUMAN RIGHTS AND CRIMINAL LAW
45
ORGANIZATIONS PROVIDING INFORMATION AND ADVOCACY SUPPORT:
AFRICA
INTERNATIONAL
THE INTERNATIONAL PLANNED PARENTHOOD FEDERATION (IPPF)
AIDS Legal Network (South Africa):
www.aln.org.za
AIDS Rights Alliance for Southern
Africa (ARASA): www.arasa.info
Amnesty International:
www.amnesty.org/en/health-andhuman-rights
The ATHENA Network:
www.athenanetwork.org
Global Network of People Living with
HIV/AIDS (GNP+): www.gnpplus.net
Human Rights Watch (HRW):
www.hrw.org
Interagency Coalition on AIDS and
Development (ICAD):
www.icad-cisd.com
International Community of Women
Living with HIV/AIDS (ICW):
www.icw.org
International Planned Parenthood
Federation (IPPF): www.ippf.org
Joint United Nations Programme on
HIV/AIDS (UNAIDS): www.unaids.org
Open Society Institute (OSI):
www.soros.org
Panos Global AIDS Programme:
www.panosaids.org
The People Living with HIV Stigma
Index: www.stigmaindex.org
United Nations Development
Programme (UNDP): www.undp.org
United Nations Population Fund
(UNFPA): www.unfpa.org
World AIDS Campaign:
www.worldaidscampaign.org
IPPF is a global service provider and a leading advocate of sexual and
reproductive health and rights for all. It is a worldwide movement of
national organizations working with and for communities and individuals.
AMERICAS
American Civil Liberties Union –
AIDS Project: www.aclu.org
Canadian HIV/AIDS Legal Network:
www.aidslaw.ca
Gestos (Brazil): www.gestospe.org.br
ASIA AND THE PACIFIC
“There is still an opportunity for advocates
and activists to resist this adoption of
criminal law responses. Now is a critical
time to resist this trend and promote public
health alternatives.”
Mike Kennedy, Executive Director Victorian AIDS
Council, Australia, 2008
Asia Pacific Network of People Living
with HIV APN+: www.apnplus.org
Australian Federation of AIDS
Organisations (AFAO):
www.afao.org.au
Lawyers Collective (India):
www.lawyerscollective.org
National Association of People Living
with HIV/AIDS Australia:
www.napwa.org.au/
Naz Foundation (India):
www.nazindia.org
EUROPE
African HIV Policy Network (UK):
www.ahpn.org
European Legal Database on Drugs:
www.eldd.emcdda.europa.eu/html.
cfm/indexEN.html
National AIDS Trust (UK):
www.nat.org.uk
Terence Higgins Trust (UK):
www.tht.org.uk
IPPF works towards a world where women, men and young people
everywhere have control over their own bodies, and therefore their destinies.
A world where they are free to choose parenthood or not; free to decide
how many children they will have and when; free to pursue healthy sexual
lives without fear of unwanted pregnancies and sexually transmitted
infections, including HIV. A world where gender or sexuality are no longer a
source of inequality or stigma. We will not retreat from doing everything we
can to safeguard these important choices and rights for current and future
generations.
THE GLOBAL NETWORK OF PEOPLE LIVING WITH HIV (GNP+)
GNP+ is a global network for and by people living with HIV. Its overall aim
is to improve the quality of life of people living with HIV. Its work is based
on a policy platform that promotes global access to HIV care and treatment,
ending stigma and discrimination, and greater and more meaningful
involvement of people living with HIV in decisions that affect their lives and
their communities.
THE INTERNATIONAL COMMUNITY OF WOMEN LIVING WITH
HIV/AIDS (ICW)
ICW is the only international network run for and by HIV-positive women. Its
purpose is to promote the many voices of women living with HIV and
advocate for changes that improve their lives. The work of ICW is framed by
a human rights strategy that focuses on three areas: gender equity; access
to care, treatment and support; and the right to meaningful involvement in
all decisions that affect the lives of women living with HIV.
HIV
VERDICT ON A VIRUS
PUBLIC HEALTH, HUMAN RIGHTS AND CRIMINAL LAW
2
WHO IS THIS BOOKLET FOR?
The criminal law is a
blunt instrument for
HIV prevention. It raises
serious human rights
concerns and risks
undermining our hard
won gains in the global
response to HIV. There
is a need for better
coordination between
organizations working
on human rights and
those working on HIV.
It is for anyone who wants to know more about the
criminalization of HIV transmission or exposure and the related
health, human rights and legal implications. This guide can help
you to become more familiar with the latest laws, legal support
and other services relating to HIV in your country or region.
The ten key questions in this guide provide a snapshot
of case studies and opinions from around the world. They ask
and answer the key questions about the criminalization of HIV
transmission and exposure – what it is and why it is an
increasingly important issue now; and what are the human
dimensions in terms of health, stigma, human rights, the law
and the experiences of people living with HIV.
This guide provides resources and information to:
1. Support legal advocacy and social mobilization
in countries that criminalize HIV transmission or exposure in
order to repeal or reform these laws;
2. Consolidate arguments and document why the
criminalization of HIV transmission or exposure is not an
effective approach for promoting public health;
3. Catalyse national and international activism
to prevent future laws on criminalization being enacted or
applied; and
4. Support people living with HIV to become more
familiar with legal issues and their rights.
3
CONTENTS
The verdict .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
What is ‘criminalization’ and why is it an issue now?
2
Is criminal law an effective public policy for promoting public health?
3
What laws are used to prosecute HIV transmission or exposure?
4
Does criminalization increase stigma related to HIV?
5
Where is the criminal law being used to prosecute HIV transmission or exposure?
6
Do criminal prosecutions relating to HIV strengthen or undermine public health interventions?
7
What are the legal implications of applying the criminal law to HIV?
8
What are the human rights implications of applying the criminal law to HIV?
9
What laws and strategies should replace criminalization?
10
Why must we act now?
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6
9
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25
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29
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34
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39
Annex 1: Table of countries and relevant laws
Endnotes
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5
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40
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44
Organizations providing information or advocacy support
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
45
4
ACKNOWLEDGEMENTS:
AIDS
ARASA
ART
CPS
GBH
GIPA
GNP+
HIV
HRW
ICW
IPPF
MSM
NAM
NFI
NGO
PEP
PILS
PLHIV
PMTCT
SRH
STI
UNAIDS
UNFPA
VCT
WHO
Acquired Immunodeficiency Syndrome
AIDS and Rights Alliance for Southern Africa
Antiretroviral Therapy
Crown Prosecution Service
Grievous Bodily Harm
Greater Involvement of People Living with HIV/AIDS
Global Network of People Living with HIV
Human Immunodeficiency Virus
Human Rights Watch
International Community of Women Living with HIV/AIDS
International Planned Parenthood Federation
Men who have Sex with Men
National AIDS Manual (Aidsmap)
Naz Foundation International
Non-Governmental Organisation
Post-Exposure Prophylaxis
Prevention information et lutte contre le SIDA
People Living with HIV
Prevention of Mother-to-Child Transmission
Sexual and Reproductive Health
Sexually Transmitted Infection
Joint United Nations Programme on HIV/AIDS
United Nations Population Fund
Voluntary Counselling and Testing
World Health Organization
This booklet was written in partnership between IPPF,
GNP+ and ICW and many people have contributed
energy and insight to its development. The main author
was Lucy Stackpool-Moore with key contributions from
Aziza Ahmed, James Fairfax, Adam Garner, Rebecca
Maina, Chris Mallouris and Kevin Osborne. Thanks also
to Yusef Azad, Edwin J Bernard, Aditya Bondyopadhyay,
Edwin Cameron, Michaela Clayton, Brianna Harrison,
Julian Hows, Beri Hull, Dieneke ter Huurne, Mike
Kennedy, Shivananda Khan, Kariana Lima, Kevin Moody,
Tzili Mor, Alessandra Nilo, Richard Pearshouse, Fiona
Pettit, Rhon Reynolds, Nicolas Ritter, Kabir Singh, Kate
Thomson, Belinda A. Tima, Susan Timberlake, Ale
Trossero, Clorine Weir, Alice Welbourn and Mathew
Weait who reviewed the document or contributed case
studies and opinion pieces. The production of this
booklet was coordinated by IPPF’s Advocacy and
Communications team. Designed by Sue MacDonald
([email protected]).
5
THE VERDICT
Since we first heard of HIV over 25 years ago, we have learned much about prevention. Knowledge
about HIV transmission and the role of key interventions to prevent HIV transmission from
mother-to-child and harm reduction initiatives for people who use drugs have dramatically altered the
prevention landscape. However, a worrying trend has emerged from the shadows. The use of criminal
statutes and criminal prosecutions against HIV transmission is an important human rights issue facing
the world today.
From Mali to Mozambique; Azerbaijan to Australia; and from
Canada to Côte d’Ivoire, policy makers have been utilizing and
drafting legislation that threatens to undo many of our hard
won gains. These approaches spread doubt, confusion and
stigmatization – a fertile breeding ground for the continued
spread of HIV.
In many countries, criminal prosecutions relating to HIV are
being brought under laws that have only recently been
enacted, or under old laws that have only recently been
applied to HIV transmission or exposure. The full extent of the
impact of these laws has not yet been played out and the
landscape is changing with each new law and each new case
that is investigated. In the future, more questions will be raised
– and will need to be answered.
Criminalization of HIV transmission or exposure weakens HIV
prevention efforts (and therefore public health), undermines
human rights, and fosters stigma and discrimination. Moreover,
it can further marginalize people who are already vulnerable to
HIV infection.
IPPF, GNP+ and ICW – drawing on the insights gained from
the Living 2008 Summit1 – recognized the importance of
ensuring that criminal prosecutions relating to HIV have no
place in a comprehensive and rights-based approach.
Verdict on a Virus – based on the voices of leading legal and
judicial experts, UN advisors and people living with HIV –
provides examples from around the world which strengthen
our understanding of the criminalization of HIV transmission
and exposure.
For the foreseeable future we will never have an AIDS-free
world, but we will have found a new way to live and to love,
becoming wiser and richer because of it. We must all –
irrespective of age, health status, gender or sexual orientation
– foster the advocacy champion within each of us and raise our
voices against injustice.
“I am deeply worried
about the criminalization
of HIV. I simply don’t
believe you can legislate
adequately for a sexual
relationship between two
consenting adults... [A]s
someone living with a
person with HIV, I also
know that it’s not easy to
be accepting of your own
status when you know
that you have the virus.
More importantly, though,
we must stop demonising
people with this virus.
To do so promotes the
assumption that ‘everyone
who has HIV is a danger to
someone who does not’.
This is simply untrue.”
Mark McGann, HIV activist and
actor, UK, 2004
6
1
“Efforts should be
made to address the
root causes that drive
the demand for
criminalization.”
Michaela Clayton, AIDS and
Rights Alliance of Southern
Africa, Namibia, 2008
WHAT IS ‘CRIMINALIZATION’ AND WHY IS IT
AN ISSUE NOW?
‘Criminalization’ refers to the application of criminal law to prosecute HIV transmission or exposure to
another person. Such laws appear to be spreading and include much of the world spanning Australia,
Canada, Europe and the United States into Sub-Saharan Africa and Asia.2 Little research has been done
on why policy makers pass such laws, or their effect,3 but they seem to go hand in hand with the
frustration that, despite increasing access to treatment and two decades of HIV prevention efforts,
HIV continues to spread unchecked.
In an increasing number of countries, transmitting or exposing
another person to HIV can be an offence under criminal law.
Charges are being brought under a variety of laws, either
specific to HIV transmission or exposure, or under other laws
such as murder, manslaughter, attempted murder, assault,
grievous bodily harm (GBH) or poisoning. In some countries a
distinction is made between intentional, ‘reckless’, or even
negligent transmission of HIV. Exposure laws are primarily
concerned with consent whereas transmission laws are
concerned with both consent and proof of transmission.
While some people believe that criminalization can promote
public health outcomes and improve HIV prevention efforts, it
may also deter people from accessing voluntary counselling
and testing (VCT) services, discourage them from knowing their
HIV-status and impede people from seeking appropriate care
and support.
Recently there has been an increased use of the law in relation
to HIV and new laws are also being introduced as part of
national responses to HIV. Yet there is little evidence to suggest
that the application of criminal law is effective in responding to
HIV.4 In countries with a low or concentrated HIV epidemic,
some governments see legislation as a method to stop it from
becoming generalized. It may also be viewed as a vehicle to
control the ‘unacceptable’ behaviour of some people. In
countries with a high HIV prevalence, governments may need
to show that they are now doing something proactive to
address ‘prevention fatigue’.
These efforts are misguided. The criminalization of HIV
transmission or exposure is a blunt instrument in preventing
new HIV infections and jeopardizes the benefits of a broader,
comprehensive HIV response.
Some key issues for consideration:
• Sexual health should be the responsibility of each
individual and both partners in a sexual relationship. Yet
the criminalization of HIV transmission or exposure
undermines this principle and forces people living with HIV to
bear greater responsibility for protecting the sexual health of
their partners. For prevention to work, everyone must be
empowered to take control over their own health and have
access to prevention, treatment, testing, care and support.
• The criminalization of HIV transmission or exposure,
together with laws criminalizing behaviours related to HIV
(sex work, injecting drug use or sex with someone of the
WHAT IS ‘CRIMINALIZATION’ AND WHY IS IT AN ISSUE NOW?
same sex) can further marginalize those people most
affected by HIV. Depending on the context these groups
could include: women, young people, children whose
mothers could be jailed, men who have sex with men (MSM),
people who use drugs, migrants (both documented and
undocumented), visible minorities, sex workers, internally
displaced people, people affected by conflict and disasters
and indigenous peoples. Fear of prosecution can weaken
attempts to ensure that HIV prevention efforts reach those
who need them most.
• Policy, law makers and women’s rights groups often seek
specific legislation as a measure to ‘protect women’ but
when applied these laws could target women. Criminal
laws treat men and women as equals when it comes to
criminal culpability in the transmission of HIV. Yet other
statutory or customary laws often discriminate against
women and girls such as laws that deprive women of equal
property and inheritance rights. Women are more likely to be
tested for and thus know their HIV-status, either through
routine gynecological exams or pre-natal care, and this could
lead to disproportionate prosecution of women for the
transmission of HIV.
• Criminalization of HIV transmission or exposure targets
those who are aware of their HIV-status. Yet many people
living with HIV do not know their status and may
unknowingly transmit HIV. In some circumstances or
jurisdictions it may also impact on those who are perceived
to be HIV-positive (without actually being diagnosed) and is
linked with social marginalization and vulnerability to HIV.
7
Exacerbating the stigma and discrimination often
experienced by people living with HIV or those most
vulnerable to HIV may undermine, rather than promote,
efforts to prevent it.
• The evidence in criminal prosecutions relating to HIV can
be misinterpreted. The law is an instrument that should only
be used to penalize or reprimand someone based on sound
evidence or proof. Yet providing the evidence around the
transmission of HIV from one person to another is becoming
an increasingly complex question. Issues such as the effect of
antiretroviral therapy (ART) on ‘infectiousness’ and the great
difficulty of scientifically determining the timing and direction
of infection (i.e. ‘who had it first’) in cases of sexual
transmission have to be carefully considered.
• Criminal laws relating to HIV transmission or exposure
undermine the human rights of people living with HIV. The
law can be a tool for promoting human rights and for enabling
the highest attainable standard of health for all, free from
stigma and discrimination. Yet an approach of prosecuting HIV
transmission denies both. When applied to HIV, it singles out
those living with HIV and undermines their human rights.
• Everyone is affected by the criminalization of HIV
transmission or exposure. People living with HIV may
experience heightened prejudice or stigma and/or may
internalize this and begin to think of themselves as potential
criminals. Everyone is affected by the criminalization of HIV
transmission since the association of HIV transmission with
criminal prosecutions can foster stigma and discrimination.
resources
• UNAIDS (2008) Policy brief: Criminalization of
HIV Transmission, http://data.unaids.org/pub/
BaseDocument/2008/20080731_jc1513_polic
y_criminalization_en.pdf
• Bernard, E (2008) Criminal HIV Transmission:
A collection of published news stories and
opinions about so-called ‘HIV crimes’,
http://criminalhivtransmission.blogspot.com/
• World AIDS Campaign (2008) The
Criminalization of HIV. http://www.worldaids
campaign.org/en/content/download/30226/35
2986/file/Crim%20%20English.pdf
8
WHAT IS ‘CRIMINALIZATION’ AND WHY IS IT AN ISSUE NOW?
“Like in the early years
of the epidemic when I
declared that we have
‘HIL – Highly Inefficient
Laws’, when there were
the proposals for
testing everyone in
society, we now have
a new wave of HIL.
And it’s a wave that’s
coming particularly in
Africa, but also in other
parts of the world.”
Michael Kirby, Justice of the
Supreme Court, Australia,
20075
SWITZERLAND: RAISING DOUBT – ARE YOU INFECTIOUS IF YOU ARE HIV-POSITIVE AND HAVE
AN UNDETECTABLE VIRAL LOAD?
Recent scientific research indicates that under specific
circumstances someone living with HIV may in fact not be
able to sexually transmit the virus. A consensus statement
from the Swiss Federal AIDS Commission in early 2008 stated
that HIV-positive individuals who are on effective
antiretroviral therapy [this includes having an undetectable
viral load for at least 6 months, being adherent to treatment
and being under medical supervision] and do not have any
other sexually transmitted infections (STIs) cannot sexually
transmit HIV.
This statement has implications for criminal law as it outlines
that under certain circumstances a person living with HIV
could not sexually transmit or expose HIV to another person
– and therefore should not be prosecuted simply because
they have a virus in their body.
Vernazza P et al. (2008) Sero-positive people that do not have any other STI and
are following an effective regime of ARVs are uninfectious through sexual contact,
Swiss Medical Bulletin 89 (5)
definition
Criminalization of HIV transmission or
exposure: the application of the criminal law to
prosecute the transmission of or exposure to the human
immunodeficiency virus (HIV) to another person.
9
2
IS CRIMINAL LAW AN EFFECTIVE PUBLIC
POLICY FOR PROMOTING PUBLIC HEALTH?
If the criminalization of the transmission or exposure to HIV is a measure to intensify and strengthen
HIV prevention efforts (and thereby protect public health), can we be sure that we have explored all
other avenues before resorting to criminal law? And can we prove with certainty before criminalizing
innocent people that such laws have a positive impact on HIV prevention?
Criminal law – although applied differently in different
countries and cases – is generally used to achieve some or all
of the following objectives:
1. to provide retribution (for the victim or the victim’s family to
feel justice has been served);
2. to offer a deterrent (to discourage the offender from
repeating the crime, and to discourage other diagnosed HIVpositive individuals from doing the same);
3. to incapacitate (to disable the offender from committing the
same or similar crime);
4. to rehabilitate (to change the behavioural patterns of the
offender in such a way that they will not repeat the crime in
the future); and
5. to provide restitution (in an attempt to repair any damages
or costs incurred during the crime).6
The criminal law – by design and application – can provide for
punishment and a sense of justice for those affected by HIV
transmission. However, this justice is bittersweet, since the very
same law subsequently considers the ‘victim’ in one case a
potential perpetrator in another.
Relating to HIV, there is little data supporting the claim that
criminal prosecution (or the threat thereof) encourages
disclosure to sexual partners by people living with HIV or
deters conduct that poses a risk of transmitting the virus.7
There is also little data supporting the claim that criminal
prosecutions provide a direct disincentive for testing, but
evidence suggests that it does fuel stigma.8 Stigma and
discrimination undermine prevention efforts, and more research
is needed to understand the depth and breadth of the impact
that criminal prosecutions relating to HIV have on individuals
as well as on public health.
“A simplistic law-and-order
response creates the
impression that decisive
action is being taken. We
know that stigma and
discrimination are potent
accelerators of an HIV
epidemic and the kind of
court, media and
community responses we
have seen around the
world when the criminal
law is part of a society’s
HIV response will
exacerbate rather than
ameliorate increasing HIV
trends. There is still an
opportunity for advocates
and activists to resist this
adoption of criminal law
responses. Now is a critical
time to resist this trend
and promote public health
alternatives.”
Mike Kennedy,
Executive Director Victorian
AIDS Council, Australia, 2008
10
IS CRIMINAL LAW AN EFFECTIVE PUBLIC POLICY FOR PROMOTING PUBLIC HEALTH?
“Individuals who feel
‘betrayed’ by becoming
HIV-positive through
having unprotected sex
with a previously
diagnosed HIV-positive
partner should seek
counselling, rather than
retribution via the
criminal justice system.”
Edwin J Bernard, NAM,
UK, 2008
Public health can more effectively be achieved without
resorting to the criminal law, for example by:
• Linking people living with HIV with community health
workers and peer educators who can share information
about the risks of transmission and how best to reduce or
eliminate these risks. They can also help refer people to
appropriate and diverse treatment, care and support options.
• Strengthening anti-stigma campaigns that could create a
supportive environment that could promote voluntary
disclosure.
• Providing legal support services for people living with HIV
and their families and friends who have faced discrimination.
• Providing counselling services for newly diagnosed people
and offer support on a range of issues such as repeated
disclosure or dating with HIV.
• Including prevention programmes aimed at people living
with HIV as part of a comprehensive prevention package
within national HIV responses.
• Providing sexuality, relationships and values education as a
core part of all school curricula.
resources
• UNAIDS (2002) Criminal Law, Public Health and HIV Transmission: A Policy
Options Paper, http://data.unaids.org/Publications/IRC-pub02/JC733CriminalLaw_en.pdf
• AIDS and Rights Alliance for Southern Africa http://www.arasa.info
• Sigma Research (2005) Grievous Harm: the use of the Offences Against the
Persons Act 1861 for sexual transmission of HIV,
http://www.sigmaresearch.org.uk/downloads/report05b.pdf
• Open Society Institute (forthcoming) Ten reasons why criminalization of HIV
exposure of transmission is bad public policy. Document under review.
http://www.soros.org/health/10reasons
definition
Post-Exposure Prophylaxis (PEP) is a one-month
antiretroviral therapy to reduce the risk of a person
becoming infected with HIV and administered
immediately after possible exposure. In some countries,
although evidence is not available, it is recommended
that PEP is administered within 4 hours of exposure if
possible and it will not be administered after 48 hours
(in some countries this limit is extended to 72 hours).
There is a need for more established research to
measure the effectiveness of PEP including the
effectiveness by time after possible exposure, the actual
impact on seroconversion and its availability and
accessibility in different settings.
http://www.pep.chapsonline.org.uk/pep_basics.htm
IS CRIMINAL LAW AN EFFECTIVE PUBLIC POLICY FOR PROMOTING PUBLIC HEALTH?
11
EXPERT
IS THERE ANY LEGITIMACY IN CRIMINALIZING HIV?
Matthew Weait, Senior Lecturer in Law and Legal Studies, Birkbeck, University of London, 2008
Criminal law is the most powerful mechanism a society has for
expressing collective disapproval of a person’s conduct and
typically results in the imposition of punishment – whether
that be a monetary penalty or imprisonment.
Criminal law serves a social purpose: it is not, nor should be, a
means of achieving private vengeance. For criminalization to
be legitimate there must be a public interest at stake, not just
the interest of the individual concerned.
When considering the justification for criminalizing HIV
transmission, it is therefore important to think carefully about
precisely what the public interest in prosecution is. Some might
argue that this is self-evident: society has a right to be protected
against those who would use others to their own ends, for
selfish gratification, and who harm them in doing so. But – and
it is a big but – we need to acknowledge that the
criminalization of HIV transmission may have adverse public
consequences, especially for public health. Take a few examples:
• Condoms are not 100% effective. Where criminal liability
may be imposed merely for exposing someone to the risk of
transmission, some people living with HIV (even if only a
very small minority) may take the view that there is no point
taking precautions. In the absence of a defence for
appropriate condom use, such a criminal law provides no
incentive to minimize onward transmission risk.
All of these possible consequences can only serve to
increase onward transmission, and as such brings into
question the efficacy of criminalization as a publicly
justifiable response.
• If people knowingly living with HIV infection fear that they
may have passed it to someone else, they may be less likely
to advise that person to seek Post-Exposure Prophylaxis
(PEP) for fear that in doing so they are confessing to the
commission of an offence.
A practical reason for questioning the criminalization of HIV
transmission is the difficulty of proof. The science
(phylogenetic analysis) simply is not good enough to
determine the source, route or timing of transmission. Even
where the defendant and victim have the same HIV sub-type it
is impossible, in the absence of other compelling evidence, to
be sure that the defendant is guilty as charged. There has been
a number of cases in which people have pleaded guilty having
been confronted with such scientific evidence and there can
be no certainty that they were rightly convicted. The potential
for miscarriages of justice is great.
• Those who are HIV-positive but do not know for certain, or
people who believe they might be, may be less willing to
discover their status for fear that this knowledge could be
used against them.
When considering whether it is legitimate to criminalize HIV
transmission and exposure it is critical that whatever our
moral views are we acknowledge the wider – and in my
opinion dangerous – consequences of doing so.
resources
• Weait, Matthew (2007) Intimacy and
Responsibility: the Criminalization of HIV
Transmission (Abingdon: RoutledgeCavendish)
• Weait, Matthew (2005) ‘Knowledge,
Autonomy and Consent: R v Konzani’
Criminal Law Review, October pp763-772.
• Weait, Matthew (2005) ‘Criminal Law and
the Sexual Transmission of HIV: R v Dica’
Modern Law Review 68(1): 121-134
• Weait, Matthew (2001) ‘Taking the Blame:
Criminal Law, Social Responsibility and the
Sexual Transmission of HIV’ Journal of
Social Welfare and Family Law, 23(1):
441-457
12
33
WHAT LAWS ARE USED TO PROSECUTE
HIV TRANSMISSION OR EXPOSURE?
Julian Hows, former Board
Member GNP+, UK, 2008
Some countries have developed laws which explicitly relate to HIV that prohibit transmission or
exposure of another person to HIV. Other countries have applied existing laws to prosecute the
transmission of HIV where specific laws on HIV do not exist. This would include laws relating to
transmission of contagious diseases, sexually transmitted infection or causing injury to health; laws
relating to bodily harm, assault, GBH and aggravated assault; and/or laws relating to homicide, such as
murder, manslaughter, killing, and poisoning.
“I have never met a
positive person who
wishes to transmit the
virus – and I have met
many!”
Recent trends indicate that these laws have often been
employed specifically against people living with HIV even
though they have not been methodically implemented in the
past.9 This can violate social justice (since it implies a selective
application of the law) and it hampers efforts to address HIV
(since it further marginalizes some of the groups most
vulnerable to infection).
“It’s actually not our
actions that are being
prosecuted, it’s our virus.”
Chris Mallouris, Director of
Programmes GNP+, 2008
HIV transmission or exposure may impact the application of
other laws that criminalize behaviours that are associated with
HIV vulnerability (such as drug use, sex work or sex with
someone of the same sex) for example on sentencing. Many of
the laws relating to sodomy, debauchery and indecency are a
legacy from the colonial era10 and/or are moulded by cultural or
religious beliefs. They foster an environment in which stigma
thrives and people most vulnerable to HIV are forced to hide
for fear of persecution and violence.
In cases where intention to do harm is clear, criminal
prosecution is appropriate. But even in these cases, there is no
need for HIV-specific laws and existing laws can be used to
prosecute the action rather than the virus.
resources
• Global Network of People Living with HIV/AIDS Europe and Terrence Higgins
Trust (2005) Criminalisation of HIV transmission in Europe.
http://www.gnpplus.net/criminalisation/index.shtml
• ARASA/OSISA (2007) Report on the ARASA/OSISA civil society consultative
meeting on the criminalization of the wilful transmission of HIV
http://www.arasa.info/files/pub_Meeting%20report%20final.doc
WHAT LAWS ARE USED TO PROSECUTE HIV TRANSMISSION OR EXPOSURE?
“The UN and others were
remiss to let this West
African Model Law form
under our noses. That law
has spread like a virus. We
have tried to stop it, but it
continues to spread.”
WEST AFRICA: HOW ‘MODEL’ IS THE MODEL LAW?
The N’Djamena Model Law: Article 36 makes it
an offence to wilfully transmit HIV, with Article
1 defining wilful transmission very broadly, as
transmitting HIV ‘through any means by a
person with full knowledge of his/her HIV/AIDS
status to another person.’
This case study highlights an example of an HIV specific
law and how policy makers appear to be passing
legislation without considering the possible implications
or potentially selective application of those laws.
In the last few years, Western and Central Africa have
experienced a dramatic increase in the number of
countries introducing HIV-specific criminal exposure and
transmission laws.
The laws vary depending on country, and some are more
severe than others. For instance, in Benin exposure to HIV
alone is criminalized (even when transmission has not
occurred), or in Tanzania proof of wilful transmission leads to
life imprisonment.11 Most of these laws are based on the
African Model Law, created in September 2004 during a
workshop by Action for West Africa Region– HIV/AIDS
(AWARE–HIV/AIDS), in N’Djamena, Chad. Since 2005 Benin,
Guinea, Guinea-Bissau, Mali, Niger, Togo and Sierra Leone
have passed laws12 and more countries are proposing
similar laws.13
13
Despite having some policies that promote pre- and post-test
counselling, the laws also contain provisions that are
problematic and arguably detrimental to public health. In
Tanzania for example, ‘wilful transmission14 through any
means’ creates a grey area when it comes to enforcement.
Because it is unclear what a reasonable person should do to
prevent transmission, even people who use condoms or who
disclose their HIV-status can be prosecuted for criminal
transmission. In some cases the law is so broad that it could
include the criminal prosecution for the transmission of HIV
from mother-to-child.
resources
• Human Rights Watch Open Civil Society Letter to the Participants of the
“Capacity Building Workshop on Human Rights and Gender in HIV Legal
Frameworks,” 15 April 2008, at
http://hrw.org/english/docs/2008/04/15/africa18552_txt.htm
• Welbourn, A (2008). HIV/AIDS a war on women. Open Democracy
http://www.opendemocracy.net/article/5050/international_womens_
day/hiv_aids
• Canadian HIV/AIDS Legal Network (2007). A human rights analysis of the
N’Djamena model legislation on AIDS and HIV-specific legislation in Benin,
Guinea, Guinea-Bissau, Mali, Niger, Sierra Leone and Togo
Kevin Osborne,
IPPF Senior HIV Advisor, 2008
“I am concerned about the
weak advocacy response
from civil society in the US.
The involvement of people
living with HIV is dying in
the US and that is part of
the problem. I don’t think
most people living with
HIV in the US have a clue
what the laws are here
from state to state or have
any idea that USAID
funding supported the
model laws that are being
propagated in Africa.”
Beri Hull, ICW, USA, 2008
14 WHAT LAWS ARE USED TO PROSECUTE HIV TRANSMISSION OR EXPOSURE?
EXPERT
AN EPIDEMIC OF BAD LAWS: BUILDING RESISTANCE
Richard Pearshouse, Director, Research & Policy, Canadian HIV/AIDS Legal Network, 2008
Since 2005, an epidemic of HIV laws has swept Africa.
National legislators often feel a strong impulse to ‘do
something’ in response to the epidemic. The issue of HIV
legislation is inherently sensitive – far too often it has lead
to simplistic laws driven by prejudice rather than evidence.
Momentum to legislate HIV appears to be increasing, rather
than slowing. It’s vitally important to resist this simplistic
urge to legislate.
In west and central Africa, the impulse to legislate has been
stimulated by a USAID-funded ‘model law’ on HIV. Even
though a detailed framework of human rights principles
exists to guide policy-makers in legislating the pandemic, it
would appear that the best thinking on how to approach this
sensitive task has been ignored.15 ‘Bad’ laws for example
may contain restrictions on HIV education to minors,
mandate partner disclosure or contain broad provisions
criminalizing HIV transmission ‘through any means’.
Among countries that have recently passed such laws, there
are some egregious provisions. By way of example: Guinea’s
HIV law makes HIV tests mandatory before marriage; and
Sierra Leone’s HIV law explicitly criminalizes a mother living
with HIV who exposes her child or foetus to HIV (other
national laws could do this implicitly). These laws must be
changed. There is no turning away from the long and taxing
effort required to roll-back these laws for people and
organizations working on issues related to HIV and human
rights in these countries. As a matter of urgency, national
strategies need to be developed to change these provisions.
But it’s often more difficult to amend a recent law
than influence its content while it’s being drafted.
There are a number of African jurisdictions with draft bills
under consideration at the moment (at the time of writing
these include Côte d’Ivoire, Mozambique, Malawi and
The Gambia among others). Where such laws are planned,
both policy-makers and civil society organizations must take
action and analyse their laws with a more critical eye. People
and organizations working in countries that are currently
developing HIV legislation need to actively engage in the
drafting process by informing themselves of the content of
the bills and submitting proposals for amendments. UNAIDS
has prepared ‘alternative language’ to the particularly
problematic provisions found in the ‘model law’ on HIV
mentioned above which may be a useful advocacy tool.16
Canadian HIV/AIDS Legal Network http://www.aidslaw.ca/women
WHAT LAWS ARE USED TO PROSECUTE HIV TRANSMISSION OR EXPOSURE?
EGYPT: TO SERVE AND PROTECT OR TO DISCRIMINATE AND PUNISH?
Egypt: Article 9(c) of Law No. 10/1961 (on
Combating Prostitution, Incitement and its
Encouragement) makes the “habitual practice
of debauchery [fujur]“ an offence.
This case study highlights an example of the use of
another law (in this case relating to homosexuality)
to criminalize those living with HIV and further
marginalize – and stigmatize – people vulnerable to and
affected by HIV. In this case, it is not the transmission of
HIV that is criminal, it is simply living with HIV – ‘proof’
enough that ‘debauchery’ has occurred.
In 2007, police in Egypt launched a crackdown and have
arrested people they suspect are living with HIV. To date
12 men have been prosecuted, nine of whom have been
convicted and sentenced on charges of ‘habitual debauchery’.
Some of the men tested positive to HIV and there is evidence
of men having been tested without their consent, allegedly
beaten by police as part of the interrogation process, and
chained to their hospital beds.
The authorities are using the positive HIV-status of men as
proof of their involvement in having sex with other men, an
illegal act under Egyptian law – and they have been
subsequently charged with the ‘habitual practice of
debauchery’.17 This has been met with widespread
condemnation from the international human rights
community, but such policies are yet to be rescinded.18 By
directly associating men who have sex with men with being
HIV-positive the authorities are compounding stigma related
to both.
resources
• BBC News Online (2008) Egypt police widen HIV arrests
http://news.bbc.co.uk/1/hi/world/middle_east/7247228.stm (accessed
28/08/08)
• Human Rights Watch (2008) Egypt: Stop Criminalizing HIV : HIV-Motivated
Arrests and Convictions Threaten Justice and Public Health
http://www.hrw.org/english/docs/2008/02/05/egypt17972.htm
• Human Rights Watch (2004), In a Time of Torture: The assault on justice in
Egypt’s crackdown on homosexual conduct.
http://www.hrw.org/english/docs/2008/02/05/egypt17972.htm
15
“This not only violates the
most basic rights of people
living with HIV, it also
threatens public health, by
making it dangerous for
anyone to seek
information about HIV
prevention or treatment.”
Rebecca Schleifer, HIV adviser
at Human Rights Watch, 200819
16
WHAT LAWS ARE USED TO PROSECUTE HIV TRANSMISSION OR EXPOSURE?
“Lucknow police have a
shameful record of
harassing gay men as well
as non-governmental
organizations that work
with them. They are able
to do so because India’s
government clings to the
criminalization of
homosexual conduct,
which only prevents
people from coming
forward for HIV/AIDS
testing, information, and
services.”
Scott Long, director of Human
Rights Watch’s Lesbian, Gay,
Bisexual, and Transgender
Rights Program, USA, 200620
“By criminalizing
homosexuals for who
they are, Section 377
violates the right to live
with dignity.”
Anand Grover, Lawyer and
director, Lawyers Collective
HIV/AIDS Unit in India, India,
2008
INDIA: ARE YOU A CRIMINAL IF YOU HAND OUT CONDOMS?
India: Section 308 and 420 of the Indian Penal Code
allows for prosecution of HIV exposure following
non-disclosure (and potentially ‘reckless’ HIV
transmission), ‘attempting to commit culpable
homicide’ and ‘cheating and dishonestly inducing
delivery of property’. Section 377 allows for
prosecution of ‘Unnatural Offences’ which includes
‘carnal intercourse against the order of nature’ and
has been used to prosecute or intimidate men who
have sex with men.
This case study highlights how a non-HIV specific law
(section 377, also known as the ‘sodomy law’) and
associated criminalization of one of the key
populations vulnerable to HIV is in fact undermining
health. It also shows how civil society can advocate to
revise or improve the law.
In India, men who have sex with men have long been
targeted by the police and authorities. For instance, in 2001,
police raided the local offices of two Non-Governmental
Organizations (NGOs) working in HIV prevention, one of
which was the Naz Foundation International (NFI). Four staff
members were jailed for over a month, accused of running a
gay ‘sex racket’ and were charged under India’s sodomy law,
criminal conspiracy, aiding and abetting a crime and the sale
of obscene materials. There was international condemnation
and the group became known as the ‘Lucknow Four’.
Although there is an explicit law about HIV transmission, there
have been no known prosecutions to date. However, there have
been prosecutions under the sodomy law, which is hampering
prevention efforts and is directly undermining public health
efforts. The law is perpetuating the marginalization,
stigmatization, and vulnerability of one of the groups most
affected by HIV in a country with one of the highest number of
people living with HIV in the world. The Naz Foundation India
Trust brought a challenge to the sodomy law before the Delhi
High Court in 2001 asking that the law no longer apply to
consenting adults. The government response at the time was
that ‘the purpose of the law is to provide a healthy environment
in the society by criminalizing unnatural sexual activities’.
In 2006 the National AIDS Control Organization (under the
Ministry of Health) filed an affidavit in which they conceded
that Section 377 is an impediment to HIV prevention and
should be repealed. According to a human rights lawyer in
India, Aditya Bondyopadhyay, this was recently supported by
the Indian Health Minister Ambumani Ramodass but incurred
strong opposition from the Law Ministry. Shivananda Khan of
the NFI recalls a conversation he had with a government
official, who once told him that “while the Health Ministry has
stated its support for working on HIV prevention, care and
support for MSM, the Home Ministry is more powerful.” The
Court has in fact asked the Health and Home Ministries to
come up with a joint advice to the court!
At the time of printing this case was before the Delhi
High Court.
WHAT LAWS ARE USED TO PROSECUTE HIV TRANSMISSION OR EXPOSURE?
PROTECTING OR PROSECUTING WOMEN?
This case study highlights how laws that criminalize HIV
transmission or exposure – even though they may have
been conceived to protect women and girls – can in fact
place them at greater risk of prosecution and exacerbate
their vulnerability to HIV, violence and marginalization.
Policy, law makers and women’s rights groups often seek
specific legislation as a measure to ‘protect women’ who are
vulnerable to HIV. However, such an approach can put them
at greater risk of being prosecuted because laws are not
gender specific and application of the criminal law does
not address the economic, social, political and personal
marginalization that underpins gender violence and women’s
vulnerability to HIV.
Because women are often the first to find out their HIV-status
in a relationship, many laws would place the responsibility of
disclosing to a partner on the woman, putting her at risk of
violence and/or abandonment and/or being blamed for
bringing HIV into the home. Women can be put at greater risk
of prosecution in countries that criminalize the ‘knowing’ or
‘reckless’ transmission of HIV to another person because
women are more likely to be tested for and thus know their
HIV-status, either through routine gynaecological exams or
antenatal care.21 Women could also be prosecuted for
transmitting HIV to a child during pregnancy or
breastfeeding.22 These social and biological factors could
result in disproportionate prosecution of women for HIV
transmission or exposure. Moreover where there is a clear
power imbalance in a relationship, women often find it
impossible to negotiate safer sex, which can make them even
more vulnerable to prosecution under many laws. All of these
factors perpetuate the vulnerability of women and girls to
HIV and relating issues of social exclusion, disempowerment
and gender violence.
This vulnerability is exacerbated by laws that deprive women
of equal property and inheritance rights, access to credit, or
salaried employment. Lack of rights to property during
marriage and at divorce means women may be forced to
remain in abusive relationships. Some customary laws
condone harmful traditional practices, such as early marriage,
polygamy (in which first wives have no say about their
husband taking additional wives), widow inheritance (in
which the deceased husband’s kin ‘inherits’ the widow, which
often involves sexual relations), and widow cleansing (in
which widows must be sexually cleansed after the death of
their husbands) all have clear implications for both the
contraction and transmission of HIV by women and girls.23
Even though women and men can equally be prosecuted
under the legislation, women are more liable to prosecution
because they are often tested sooner than their partners.
Meanwhile, national laws continue to ignore crucial issues –
and human rights abuses – that perpetuate gender
inequalities and vulnerability to HIV.
17
“It took time to understand
that women are
physiologically more
vulnerable to HIV
transmission than men, at
least where heterosexual
transmission is concerned.
It took even more time to
recognize that
physiological factors were
only one aspect of
women’s vulnerability to
HIV. The vast majority of
African HIV laws are
deathly silent with respect
to HIV among women.”
Richard Pearshouse, Canadian
HIV/AIDS Legal Network,
September 2008
18
WHAT LAWS ARE USED TO PROSECUTE HIV TRANSMISSION OR EXPOSURE?
“Criminalization acts
increase stigma for
women living with HIV
and AIDS by blaming
women for transmission
of HIV, especially in the
context of mother to
foetus transmission. This
serves to entrench the
stigma against women
as the vectors and
transmitters of the
epidemic, justifying
violence against HIVpositive women, their
expulsion from their
homes, and denial of
their right to inherit
property.”
Tzili Mor, Georgetown
University Law Center, and
Aziza Ahmed, ICW, USA,
2008
CANADA: PROSECUTING MOTHERHOOD?
Canada: Section 215(2)(a)(ii) of the Canadian
Criminal Code says that a parent, guardian or head
of a family, who has a legal duty to provide the
‘necessaries of life for a child under the age of
sixteen years’, and who fails to do so without a
legitimate excuse, commits an offence if ‘the failure
to perform the duty endangers the life of the
person to whom the duty is owed or causes or is
likely to cause the health of that person to be
injured permanently.’24
This example shows how a non-HIV specific law has
been used to criminally prosecute a mother for failing
to seek prevention of mother-to-child transmission
(PMTCT) services. It underscores how the law can have
unforeseen and unintended impacts on women.
A woman in Canada was charged with criminal negligence
causing bodily harm having chosen not to access PMTCT
services. The case is unusual. The charge the woman was
convicted of is typically reserved for cases of child neglect.
The woman was also charged with criminal negligence
causing bodily harm and aggravated assault. However, those
charges were withdrawn.25
The woman has two children – the first born in 2003, does
not have HIV. When she became pregnant the second time,
in 2004, she changed her health care provider and did not
tell her new doctors that she was HIV-positive. Her second
child did not receive essential medication after birth, and
tested HIV-positive in 2005. Although the woman did
not breastfeed her first baby (under her doctor’s advice) she
did breastfeed the second, which may have also facilitated
the transmission of HIV. The woman was sentenced to a 6
month conditional sentence followed by 3 years of probation
and also burdened with a criminal record, which can have
serious implications in terms of future employment, travel,
and access to social welfare.
This has implications for other countries (such as Sierra
Leone) where the law could also be applied to the
transmission of HIV from mother-to-child but where access to
PMTCT is more difficult. Women may be discouraged from
accessing services if they think they may be HIV-positive, as
antenatal clinics tend to insist on HIV testing as a
prerequisite to ante-natal care, with little option for opting
out or for confidentiality; while on the other hand women
that are already aware of their status may also not access
WHAT LAWS ARE USED TO PROSECUTE HIV TRANSMISSION OR EXPOSURE?
PMTCT services for fear of becoming stigmatized or
prosecuted. The example also highlights significant
inequalities in access to health services, treatment and care.
Many health care providers around the world still fail to
offer PMTCT, and so it becomes difficult (in fact almost
impossible) for some mothers not to commit ‘criminal’ acts.
Not enough has been done to address the violence,
inequality and human rights abuses that drive the
epidemic among women and girls and compound
its impact upon them. Not enough has been done to
address the real legal challenges.
One initiative to help address this gap is draft
legislation in certain areas of women’s rights
currently being developed by the Canadian
HIV/AIDS Legal Network. This project draws
together international human rights law and
illustrative examples of national legislation as the
basis for developing a draft legal framework to
respect, protect and fulfil women’s rights in the
context of HIV.
http://www.aidslaw.ca/women
resources
• Berger, J. (2007) Identifying an appropriate role for the criminal law in
addressing HIV/AIDS: a South African case study, AIDS Law project.
• Clayton, M et al. (2008) Criminalising HIV transmission: is this what
women really need? 17th International AIDS Conference, Mexico City,
abstract WEAE0102.
• Tshwaranang Legal Advocacy Centre to end Violence against Women
http://www.tlac.org.za/component/option,com_frontpage/Itemid,1/
19
“It is stigma that I
believe lies behind the
enactment of these bad
laws. Those laws seem
attractive, but they are
not prevention or
treatment friendly.
They are hostile to
both. And this is simply
because they increase
stigma. They add fuel to
the fires of stigma.”
Edwin Cameron, Justice of
the Supreme Court, South
Africa, 200826
20
4
“Criminalizing HIV can
affect people living with
HIV who are already
suffering from several
kinds of stigmatization
and discrimination…. If
the law criminalizes HIV
transmission it could lead
to the total exclusion of
people living with HIV.”
Ghizlane Naoumi, Moroccan
Family Planning Association,
2008
DOES CRIMINALIZATION INCREASE
STIGMA RELATED TO HIV?
The use of the criminal law to address an issue instantly gives it a degree of seriousness that would
not be the case if it were addressed through other legal or civil channels. Criminalization of HIV
transmission or exposure has far-reaching and long lasting effects – much longer and more insidious
than just a jail term. It combines the attitudes, perceptions and morality associated with HIV with
those relating to criminality. HIV is still a highly moralized virus that is associated with social taboos
and intimate behaviours such as sex and drug use. While there are abundant differences in morality,
context and knowledge between incidents of HIV transmission, the law is not able to succinctly
capture this human complexity.
By criminalizing HIV transmission or exposure, the lack of
distinction in the law contributes to a lack of distinction in the
media and in general public perception about the different
rights, needs, priorities and experiences of different people
living with HIV. It confuses ‘crime’ with HIV-status, and
generalizes criminal offences and behaviours to all people
living with HIV and to a health condition rather than to
an action.
For example it can:
• Influence the relationship between health professionals
and their clients. Conversations where the possible
transmission of HIV are discussed, frequency and type of
sexual encounters, testing or counselling could become
evidence if a criminal investigation was instigated.
• Affect the self-esteem of people living with HIV. People
living with HIV become grouped as ‘potential criminals’
because of the virus in their blood not because of their
actions. This sense of ‘self stigma’ runs deep and affects
uptake of treatment, care and support services.
• Affect general perceptions about people living with HIV.
Efforts to normalize HIV are severely jeopardized as HIV and
criminality become synonymous. This fosters prejudice and
stigma which fuels HIV transmission and is counterproductive
to HIV prevention efforts.
• Disrupt the lives of those directly involved in a police
investigation. The invasion of privacy can be just as
damaging an effect on someone’s life as a prosecution for all
involved.
DOES CRIMINALIZATION INCREASE STIGMA RELATED TO HIV?
SCANNING FOR EVIDENCE:
THE GLOBAL
CRIMINALISATION SCAN
definitions
Stigma is a process of producing and reproducing inequitable power relations, where negative
attitudes towards a group of people, on the basis of particular attributes such as their HIV-status,
gender, sexuality or behaviour, are created and sustained to legitimatize dominant groups in
society. The stigma associated with HIV is often based upon the association of HIV with already
marginalized and stigmatized behaviours, such as sex work, drug use and same-sex and
transgender sexual practices. Stigma relating to HIV affects people living with HIV and – through
association – their partners, children, households and others in their communities.
Internal or self stigma refers to the way a person living with HIV feels about themselves and
specifically if they feel a sense of shame about being HIV-positive. Internal stigma can lead to low
self-esteem, depression or can result in a person living with HIV withdrawing from social and
intimate contact.
Discrimination is a manifestation of stigma. Discrimination consists of actions (or lack of
actions) directed towards individuals who are stigmatized. Discrimination occurs at many
different levels, for example within a family or community setting, in an institutional or
educational setting, and/or in national policies or laws.
http://www.hivcode.org/silo/files/stigma--discrimination-.pdf
GNP+ is embarking on the Global
Criminalisation Scan: a new global
programme to document laws criminalizing
HIV-transmission and cases where people
have been prosecuted for transmitting HIV.
The methodology has been tested in Europe with
the Terrence Higgins Trust and is currently being
expanded globally. The Global Criminalisation Scan
will work with regional and national networks and
will include training of people living with HIV at all
levels on the research methodology and how to use
the evidence to inform advocacy and programming.
Country, regional and global reports based on the
collected evidence will enable networks of people
living with HIV to advocate with lawyers, human
rights activists, parliamentarians, governments and
other stakeholders to ensure the protection of the
rights of people living with HIV.
The Global Criminalisation Scan will continuously
update information and facilitate the development
of evidence-informed advocacy campaigns against
the criminalization of HIV-transmission. For more
information contact: [email protected]
21
G R E E N L A N D
22
IICELAND
C EL A N D
NORWA
NO
N
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DENMARK
D
ENMAR
A K
C A N A D A
IIRELAND
R EL A N D
UNITED
U
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KINGDOM
KINGDOM
N
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NETHERLANDS
B
E LG I U M
BELGIUM
GERM
G
ER M
LLUXEMB
U X EM B
LLICHTENSTE
I C H T EN S T E
SWITZERLAND
S W I T ZER L A N D
ITA
ITA
FRANCE
F
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MONA
M
ONA
ANDORRA
A
NDORR A
PORTUGAL
P
O RT UG A L
U N I T E D S T A T E S
O F A M E R I C A
M
SPAIN
SPAIN
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A ZORES
TU
TU
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C
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5
THE
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BAHAMAS
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DOMINIC AN
DOMINICAN
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ANTIGUA
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KI T T S & NEVIS
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HONDURAS
H
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GUATEMALA
GUATEMAL A
WHERE IS THE
CRIMINAL LAW BEING
USED TO PROSECUTE HIV
TRANSMISSION OR
EXPOSURE?
GREN A DA
GRENADA
This map shows the complex interaction of the criminal law and HIV around the world. It
highlights countries where there are laws criminalizing HIV transmission or exposure (red)
and those that have laws criminalizing behaviours closely linked with HIV vulnerability
(grey). These laws have been grouped together to form a ‘heat ‘ map of laws relating to sex
work, drug use, or having sex with someone of the same sex – the darkest grey shows
countries that have criminal laws relating to all three; the darkest red shows where these
countries also criminalize HIV transmission or exposure. A country is shaded white where the
law does not apply or there was no information available. The scope and overlap between
these laws illustrates how the application of the law can create a deadly obstacle for HIV
prevention, fuel stigma and perpetuate the marginalization of those most vulnerable to HIV.
This map is accurate at time of printing but data is limited. It draws on a range of sources referenced in annex 1.
There is a need for a comprehensive scan of laws relating to HIV and the map will be updated in 2009.
BA R BA D O S
BARBADOS
COSTA
COS TA
RICA
RIC A
G
UINE A B
I SSAU
GUINEA
BISSAU
BURKINA
B
U RK I N A
FASO
FA SO
GUINEA
G
UINE A
BENIN
B
EN I N
GHANA
G
HANA
V EN E ZU EL A
VENEZUELA
GUYANA
G
U YA N A
SENEGAL
S E N EG A L
T
HE G
A M BI A
THE
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T RINIDA D
TRINIDAD
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&T
TOBAGO
PANAMA
PA N A M A
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V
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VERDE
DOMINIC A
DOMINICA
S T. LUCIA
LU C I A
ST.
NICARAGUA
NIC A R AGUA
EL
EL SSALVADOR
A LVA DO R
MALI
MALI
B
A RBUDA
BARBUDA
HAITI
H
AITI
BELIZE
BEL I ZE
MAURITANIA
MAURITANIA
P U E R TO
PUERTO
RICO
R
I CO
JAMAICA
JA M A I C A
ALGERIA
ALGERIA
W ES T ER N
WESTERN
SAHA R A
SAHARA
FRENCH
FRENCH GUIANA
GU I A N A
LIBERIA
L I BER I A
CA
CA
T
O GO
TOGO
SURINAME
S
URIN A ME
C O LO M B I A
COLOMBIA
NIGERIA
N
I G ER I A
C
CÔTE
ÔT E
D
D'IVOIRE
' I VO I R E
SSIERRA
I ER R A
LLEONE
EO N E
EQUATORIAL
E
QUATO RI A L GUINEA
GU I N E A
SAO
S
AO TOME
TO M E
& PRINCIPE
PRINCI PE
G
ECUADOR
E
CUA DO R
ANG
ANG
B R A Z I L
P E RU
PERU
BO L I V I A
BOLIVIA
PARAGUAY
P
A R AGUAY
Any country that has laws or is considering
adopting laws that criminalize HIV transmission
or exposure. The darkness of the red reflects
overlap with laws relating to HIV vulnerability,
shaded grey.
CHILE
CHILE
ARGENTINA
A RG E N T I N A
URUGUAY
U
RUGUAY
Any country that has laws criminalizing behaviours
closely linked with HIV vulnerability (laws relating
to sex work, drug use, or having sex with someone
of the same sex). Light grey indicates countries
that have criminal laws relating to one area, the
darkest grey indicates laws relating to all three.
Any country that does not apply the criminal law
to HIV transmission, exposure or behaviours linked
to vulnerability; and/or no information available.
WHERE IS THE CRIMINAL LAW BEING USED TO PROSECUTE HIV TRANSMISSION?
SSWEDEN
W ED EN
23
R U S S I A
FFINLAND
INL AND
AY
AY
E S TO N I A
ESTONIA
L AT V I A
LATVIA
LI THUA NI A
RUSSIA
R
USSI A LITHUANIA
B
E L A RU S
BELARUS
POL AND
POLAND
M
MANY
ANY
C Z EC H
CZECH
B O U RG R
BOURG
REPUBLIC
EPU BL I C
U
K R A INE
UKRAINE
S LOV
VA
AKIA
SLOVAKIA
IN
IN
AUS T RI A
AUSTRIA
M
OL DOVA
MOLDOVA
HUNGARY
H
U N G A RY
SSLOVENIA
LOV E N I A
ROMANIA
R
OMANIA
C
ROATI
TA
CROATIA
SSERBIA
ER B
BII A
A
ALY
LY
BOSNIA
B
OSNI A
ACO
ACO & H
AC
HERZ.
ER Z .
BULGARIA
BULGARIA
M
MONTE-NEGRO
O N T E - N EG R O
M
AC
CED O N I A
MACEDONIA
K
O S OVO
KOSOVO
GREECE
G
R E EC E
M O N G O L I A
U
UZBEKISTAN
ZBEKI S TA N
G EO RG
GII A
GEORGIA
A
ZER B
BA
A I JA N
AZERBAIJAN
ARMENIA
A
R M EN I A
TURKMENISTAN
T
URKMENI S TA N
T U RK E Y
TURKEY
A
L BA N I A
ALBANIA
KYRGYZSTAN
K
Y RGY Z S TA N
NORTH
NORTH
KOREA
K
O RE A
TAJIKISTAN
TA JIKI S TA N
SOU T H
SOUTH
KOREA
K
O RE A
MALTA
M
A LTA
U
UNISIA
NI SI A
NI
K A Z A K H S T A N
CYPRUS
C
Y P RU S
LLEBANON
E BA N O N
SSYRIA
Y RI A
IISRAEL
S R A EL
PALESTINE
P
A L ES T I N E
I R A N
IIRAQ
R AQ
JO RDA N
JORDAN
LIBYA
LIBYA
AFGHANISTAN
A
FGHANIS TAN
JJAPAN
APAN
BHUTAN
B
HUTAN
KUWAIT
KU
K
U WA
WA I T
EGYPT
E
GY P T
C H I N A
PAKISTAN
P
AKIS TAN
NEPAL
N
EPA L
B
AHR AIN
BAHRAIN
DUBAI
D
U BA I
QATAR
Q
ATA R
SAUDI A
R A BI A
SAUDI
ARABIA
UNITED
U
N I T ED
A
R AB
ARAB
E
MIR ATES O
EMIRATES
OMAN
MAN
I N D I A
BANGLADESH
B
A NGL A DESH
M
YANMAR
MYANMAR
HONG
H
ONG KONG
KONG
M
MACAU
AC AU
TAIWAN
T
AI WAN
LLAOS
AOS
R
CHAD
CH A D
ERITREA
E
RI T RE A
YEMEN
Y
EM EN
THAILAND
T
HAIL AND
SSUDAN
UDAN
VIETNAM
V
IE T N A M
PHILIPPINES
P
H I L I P P I N ES
CAMBODIA
C
A M BO D I A
DJIBOUTI
DJ
I BO U T I
ETHIOPIA
E T HIO PI A
CENTRAL
C
EN T R A L
AFRICAN
A
FRI C A N
REPU BL I C
REPUBLIC
AMEROON
A M ERO O N
SSRI
RI LLANKA
ANK A
DEMOCRATIC
D
EMOCR ATIC
REPUBLIC
R
EP U BL I C
OF
CONGO
O
FC
O NGO
GABON
G
A BO N
SOMALIA
SOMALIA
BRUNEI
B
RU N E I
MALAYSIA
MAL AYSI A
MALDIVES
M
A L DI V ES
KENYA
K
ENYA
RWANDA
R
WA N DA
CONGO
C
O NGO
MALAYSIA
M
A L AYSI A
UGANDA
U
G A NDA
KIRIBATI
K
IRIBATI
SSINGAPORE
I NG A P O RE
BURUNDI
B
U RU N D I
TANZANIA
TANZ ANIA
O
OLA
LA
SSEYCHELLES
E YCHELLES
PAPUA
P
A PUA
NE W G
UINE A
NEW
GUINEA
I N D O N E S I A
S O LO M O N
SOLOMON
IISLANDS
SL A N DS
T
UVALU
TUVALU
EAST
E
A S T TIMOR
TIMOR
C
COMOROS
O M O RO S
ANGOLA
A NGO L A
MALAWI
M
A L AW I
MOZAMBIQUE
M OZ A M B I Q U E
ZAMBIA
Z
A M BI A
NAMIBIA
N
A M I BI A
FFIJI
IJI
VANUATU
V
ANUATU
MADAGASCAR
M
A DAG A SC A R
ZIMBABWE
Z I M BA B W E
MAURITIUS
M
AURI T IUS
BOTSWANA
B
OT S WA N A
A U S T R A L I A
LLESOTHO
E S OT H O
NE W
NEW
CALEDONIA
C
A L ED O N I A
SSWAZILAND
WA ZIL AND
SSOUTH
OUTH AFRICA
A FR I C A
N E W
Z E A L A N D
24
“We know that the
main barriers to testing
are fear, stigma and
denial. Laws that
criminalize HIV exposure
or transmission, and the
media coverage of
arrests, investigations
and prosecutions, work
– subtly or not-so-subtly
– at increasing all three
of these factors.”
Edwin J Bernard, NAM, UK,
2008
MEASURING THE IMPACT: THE PEOPLE LIVING WITH HIV STIGMA INDEX
Much of what we know about the stigma attached to HIV,
and resulting discrimination, is anecdotal or fragmented.
Existing surveys of community and healthcare provider
attitudes mean much more is known about their influence:
namely that stigma can create a barrier to accessing HIV
prevention, treatment and care services. Without concerted
action the goal of universal access will be impossible to
achieve. The People Living with HIV Stigma Index provides a
tool that will measure and detect changing trends in relation
to stigma and prejudice experienced directly by people living
with HIV.
“The index provides the best opportunity for
people living with HIV to tell their secrets – so we
need to develop the skills to ask them.”
Princey Mangalika, Lanka+, Sri Lanka, 2008
The findings from the People Living with HIV Stigma Index
will ensure that the policy implications of criminalization are
backed by the evidence and experiences of people living
with HIV.
The People Living with HIV Stigma Index will contribute to
improving policies by:
I.
Providing evidence to advocate for alternatives to
criminalization, such as scaling-up and improving
existing prevention, treatment, care and support
programmes and promoting prevention among people
living with HIV by advocating for its inclusion more
prominently in national health strategies.
II. Advocating that all agencies involved in criminal
prosecutions relating to HIV reconsider and clarify their
approaches in light of the detrimental impact to public
health they are likely to have. Agencies to be targeted
include those working in migration, human rights,
education, health, justice and the bodies that manage
the national and local police services.
III. Promoting informed public debate and influencing public
opinion to reduce stigma associated with living with HIV
and other associated sources (such as racism,
immigration, homophobia, misogyny, xenophobia and
stigma relating to drug use).
http://www.stigmaindex.org
25
6
DO CRIMINAL PROSECUTIONS RELATING
TO HIV STRENGTHEN OR UNDERMINE
PUBLIC HEALTH INTERVENTIONS?
The criminal law is not effective – and is in fact counterproductive – for promoting public health
interventions related to HIV. By exacerbating both HIV-related stigma and the vulnerability on which it
thrives, criminalization can:
• Provide a disincentive for people to be tested for HIV.
The benefits of knowing your status could be weighed
against the risk of any potential prosecution in the future.
People who are particularly vulnerable to HIV already face a
number of obstacles when seeking voluntary counselling and
testing services.
• Provide a deterrent to disclosure. If a person fears they may
have passed the virus on to their sexual partner (if, for
example, a condom breaks), they may be very wary of
disclosing (if they had not disclosed their status previously)
because they could be implicated in a crime.
• Create a barrier to accessing services. People who know that
they are living with HIV require a comprehensive package of
services from their clinics and hospitals. The stigma relating to
HIV, exacerbated by the criminalization of HIV transmission or
exposure, creates barriers to regular medical checkups and
psycho-social support. It could also lead to distrust between
the health care providers and their clients.
• Create a culture of blame, rather than one of ownership.
It is the responsibility and right of every person to have
access to up-to-date and accurate information. Everybody is
responsible for reducing HIV transmission and there should
be no undue burden on people who are aware of their
HIV-positive status. Safer and responsible sexual behaviour is
the responsibility of all partners.
• Undermine prevention strategies. By focusing on the
relatively few people who know their status, criminalization
will have a limited impact. With increased access to ART
becoming a reality, many people who are aware of their
status are also on effective medication (see page 8,
conclusions from the Swiss statement) which has
implications for their ‘infectiousness’. In the few countries
(such as Singapore or Switzerland) where exposing someone
to the risk of transmission is an offence (with or without a
condom, and with or without disclosure), some people may
not see the value in taking precautions.
• Breed false assumptions. If prosecutions become
commonplace and the law indicates that disclosure is
essential in order to avoid criminal liability, people may start
to assume that those that don’t disclose are automatically
HIV negative which may also promote – rather than prevent
– HIV transmission.
• Increase vulnerability to and risk of HIV infection for key
populations. Women, young people, sex workers, men who
have sex with men, prisoners and people who use drugs may
be further marginalized – reducing their ability and
willingness to access services and support.
• Undermine human rights. Discrimination against people
living with HIV, and the associated stigma, violates the
human rights of people living with HIV. It is something that
the legal system could in fact address, but in jurisdictions
where the transmission of HIV has been criminalized, the
paradox in practice is that the law is actively undermining the
very pillars of justice and equality that it strives to achieve.
“Condoms and lube and
sterile injecting equipment
are much more effective
at preventing HIV
transmission than criminal
laws, and leave you
(rather than the State) in
control of protecting you
and your sexual or
injecting partners.”
Michael Kennedy, Executive
Director Victorian AIDS
Council, Australia, 2008
resources
Open Society Institute (forthcoming) Ten reasons
why criminalization of HIV exposure of
transmission is bad public policy. Document under
review. http://www.soros.org/health/10reasons
WHO (2006). Technical consultation in
collaboration with the European AIDS Treatment
Group and AIDS Action Europe on the
criminalization of HIV and other sexually
transmitted infections, Copenhagen,
16 October 2006 WHO, International Digest of
Health Legislation
http://www.who.org/dsa/periodicals/dig.html.
Sigma research (2005) Grievous harm: use of the
Offences Against the Person Act 1861 for sexual
transmission of HIV, http://www.sigmaresearch.
org.uk/go.php/reports/policy
Dodds, C. and P. Keogh (2006) Criminal
prosecutions for HIV transmission: people living
with HIV respond in International Journal of STD
& AIDS, 2006, 17(5): 315-318(4).
26
DO CRIMINAL PROSECUTIONS RELATING TO HIV STRENGTHEN OR UNDERMINE PUBLIC HEALTH INTERVENTIONS?
“People make health
decisions based on
what they read in the
newspapers ... [T]here
can be no doubt that
the appalling state of
health reporting is now
a serious public health
issue.”
Ben Goldacre, UK journalist,
September 200838
START SPREADING THE NEWS: MEDIA COVERAGE OF CRIMINAL PROSECUTIONS CAN STIGMATIZE HIV
‘Jailed for ten years, the one-man HIV epidemic’27
‘AIDS assassin is jailed’28
‘Sexual predator who infected women with HIV
starts 10-year jail term’29
This case study highlights an example of how the
conflation of HIV and criminality – and its coverage in
the media – can promote stigma and affect public
perceptions.
Crime sells newspapers, especially when related to social
taboos. In countries where HIV transmission or exposure is
criminalized, media coverage may focus more on criminal
investigations and convictions rather than on other possible
angles for covering HIV (such as access to appropriate
treatment, care and support services, and/or everyday
experiences of living with HIV). Coverage of crime is often
sensationalized. This can cultivate fear, stigma and shame
relating to HIV which can in turn pervade personal, social,
legal and public health responses to HIV. For example in a
survey conducted in Nigeria, Journalists Against AIDS learnt
that Nigerian health staff reported that they obtain 70% of
their knowledge about AIDS from the Nigerian media.30
In some countries, media coverage may conflate criminal
prosecutions relating to HIV with other emotive issues relating
to offences such as rape, under-age sex or debauchery. This
can make it harder to conduct a reasoned and informed public
debate about HIV legislation. For example the Kenyan Sexual
Offences Act (2006) – where HIV transmission is explicitly
criminalized (Art. 26) along with other laws relating to rape
and other sexual offences – was passed amidst media reports
profiling cases of rape and child defilement. One story was
about ‘Laura’, a 12-year-old girl, who had allegedly been
sexually abused by a neighbour since she was six and was
HIV-positive as a result. This prompted numerous letters to the
editor and other reports of similar stories.31 Media coverage of
the legislation was fuelled by a climate of general public anger
towards the perpetrators of such offences. One newspaper
reader argued for a harsher penalty (capital punishment, as
opposed to the proposed chemical castration) “…especially
because of the Aids factor.”32 Instead of focusing on child
abuse, this example focused on the HIV-status and generalized
this offender’s behaviour to the behaviour of all people living
with HIV.
There is a need for critical analysis to understand the
relationship between race, criminal justice and HIV and how
these issues are covered in the media. In one example, Nushawn
Williams (a 21-year-old African American man from Brooklyn,
New York) was sentenced to 4-to-12-years in prison for pleading
guilty to having sex with a minor and reckless endangerment for
passing on HIV to two women.33 He was initially indicted on
charges of attempted assault, sexual misconduct and
endangering the welfare of a child but the details of his case
DO CRIMINAL PROSECUTIONS RELATING TO HIV STRENGTHEN OR UNDERMINE PUBLIC HEALTH INTERVENTIONS?
evoked a media furore since he had identified almost 50 sexual
partners to authorities, 13 of whom subsequently tested positive
for HIV. In 1997, public authorities in Chautauqua County, New
York, were granted an exception to the State’s HIV
confidentiality law – and released his name and picture to the
media as a “public health threat”.34 Some of the headlines that
followed included ‘The One Man AIDS Epidemic’ and Williams
was referred to as an “AIDS predator”, a “monster”, a “dirtbag”,
a “maggot”, the “bogeyman incarnate”.35 There were
exaggerations, misunderstandings, and distortions in the media
coverage which possibly fuelled a pervasive atmosphere of
threat, undermined the integrity and fairness of application of
criminal justice, and arguably reinforced racist stereotypes about
the hyper-sexuality of African Americans.36
In another example, African migrants in the UK are among the
most vulnerable to HIV infection, accounting for the greatest
number of new diagnoses in recent years. Being HIV-positive can
intensify experiences of stigma and marginalization, apparent in
limited employment opportunities and/or lack of visibility in
policy decisions. These practical realities are exacerbated by
current and historical constructions of racism, xenophobia, and
stereotypes of African hypersexuality which can be reflected in
media coverage and sensationalized in headlines. Stigmatizing
media coverage of African migrants can exacerbate the feelings
of isolation, frequently prevents people from coming forward to
access health services, and can fuel a vicious cycle of reduced
access to services leading ultimately to increased vulnerability.37
More research is needed to analyse the coverage of criminal
investigations and prosecutions relating to HIV in the media and
to understand the impact that it is having on people living with
HIV, politics, policy making and public perceptions. Journalists
should be encouraged to follow guidelines including respecting
the right to privacy, and the publication of accurate and nonstigmatizing reporting on HIV and issues relating to vulnerability
(such as migration, sex work or drug use).
resources
• National AIDS Trust (NAT) and National Union of Journalists (NUJ) (2007)
Guidelines on Reporting HIV http://www.nat.org.uk/document/254
• Kaiser Family Foundation (2008) Reporting Manual on HIV/AIDS
http://www.kff.org/hivaids/7124.cfm
• Panos London (2007) Start the Press: How African communities in the UK can
work with the media to confront HIV stigma. Resources for journalists,
advocates and activists and includes a language guide
http://www.panos.org.uk/?lid=293
• Panos Global AIDS Programme http://www.panosaids.org
• Edwin J Bernard Blog: Criminal HIV transmission: A collection of published
news stories and opinion about so-called ‘HIV crimes’.
http://criminalhivtransmission.blogspot.com/
27
28
DO CRIMINAL PROSECUTIONS RELATING TO HIV STRENGTHEN OR UNDERMINE PUBLIC HEALTH INTERVENTIONS?
“In addition to the 3
pillars of Universal Access
– prevention, treatment,
care and support – we
need to include nondiscrimination. People
need to understand that
non-discrimination is just
as much a programmatic
priority as the other
three and that
addressing it is critical in
national responses to
HIV.”
Susan Timberlake, Senior
Human Rights and Law
Advisor, UNAIDS, 2008
BRAZIL: LEGAL SERVICES AND SUPPORT FOR PEOPLE LIVING WITH HIV
Brazil: The Penal Code explicitly criminalizes the
transmission of HIV through sex (articles 129, 130,
131); through vertical transmission (article 131);
and through blood or infected syringes or sharp
instruments (articles 129, 131, 267 and 268).
This case study highlights how a local NGO can
provide the legal and referral services to support
people living with HIV. Their success rate in defending
the human rights of people living with HIV underscores
the deficiency in the existing laws and policies to
safeguard the rights of people living with HIV.
Gestos is a communication and human rights NGO in
Pernambuco in the Northeast of Brazil. The increase in new
cases of HIV in Pernambuco has also been accompanied by
growing numbers of violations against the rights of people
living with HIV. According to Kariana Lima, the head of the
juridical work at Gestos, “people living with HIV are often
discriminated against in Pernambuco, which promotes
illness.”
Gestos provides free legal assistance for people living with
HIV and supports cases in the key areas of:
1. Accessing basic medicines and ART at pharmacies, clinics,
hospitals and other healthcare facilities
2. Challenging the discrimination experienced by people
living with HIV in public health services
3. Improving the antenatal care received by women living
with HIV
4. Promoting workplace policies that protect the rights of
people living with HIV and challenging cases of
discrimination in the workplace
5. Advocating for social security for people living with HIV
such as benefits, housing allowance or other sources of
income
Gestos provides legal support for more than a hundred
people each year. To date more than 50 lawsuits annually
have been brought before the court alleging violations of
the rights of people living with HIV, with a success rate of
about 70%. They also advocate for support outside the law
and facilitate the establishment of self-help groups and
other networks to promote the rights of people living with
HIV.
http://www.gestospe.org.br/
29
7
WHAT ARE THE LEGAL IMPLICATIONS OF
APPLYING THE CRIMINAL LAW TO HIV?
In addition to the social and public health implications, criminal prosecutions relating to HIV
highlight serious inequalities in the application of the law. Many of the laws explicitly criminalizing
HIV transmission or exposure are poorly drafted and capture behaviour that society has no interest
in punishing.39 The laws are often applied unfairly and selectively. This undermines human rights
and cultivates a risk that due process may not be applied, confidentiality may be breached and
inconclusive scientific evidence may be misinterpreted.
Some examples of how the law can be applied differentially
include:
• Sentencing. Offences such as rape usually carry heavy
custodial sentences in all countries but should the length of
these sentences differ if the defendant is HIV-positive and
has/has not passed on HIV?
• Custody. If a person living with HIV is prosecuted and
sentenced to a custodial term, their care needs (such as
access to ART, condoms and clean injecting equipment) are
often overlooked or not adequately provided for in prison.
There is an increased risk of onward HIV transmission within
many prisons and the rights of the person living with HIV
may be further violated.
• Consent. In most countries, a legal defence against a charge
relating to the transmission of HIV rests on the concept of
consent. Yet consent is open to interpretation and raises
several questions such as when does one give consent? To
what extent does that consent have to be ‘informed’ for it to
be valid consent? Open disclosure or sometimes indirect
inference of HIV-status can be sufficient for a defence in
court. However, it can be very difficult to prove.
• Evidence. Where the resources exist, genetic tests of the HIV
viruses in the different individuals can be used.40 But the tests
and their limitations are not sufficiently understood by lawyers,
police, people living with HIV and their advocates, juries and by
those reporting on the case (such as the media). This creates a
risk of an unfounded guilty plea or an unjust conviction based
on misrepresentation of inconclusive evidence.
• Police behaviour and law enforcement. Due to the
difficulties in proving the direction of transmission in a court
case, extensive police investigations are often necessary and
the sexual histories of many individuals are scrutinized. This
can be a violation of people’s right to privacy and such
investigations can be as disruptive and stigmatizing as a
prosecution itself – for the person bringing the charge and the
witnesses, as well as for the accused.
• Lack of accessible information for people living with HIV
regarding legal services. Many people living with HIV
remain unaware of their rights and how to ensure that these
are protected. The availability of – and access to – quality
legal representation and advice should be an integral
component of services available to people living with HIV.
Ensuring that those most susceptible to persecution and
prosecution are well informed about the law, their rights, and
about comprehensive prevention techniques is an effective way
of mitigating the negative impact that criminal prosecutions
relating to HIV can have.
“Living with HIV I feel
like I am in prison,
criminalization makes
me feel like I have been
locked up twice.”
African woman living with
HIV, UK, 200541
resources
• Weait, Matthew; Azad, Yusef (2005) The
criminalization of HIV transmission in
England and Wales: questions of law and
policy. HIV/AIDS Policy and Law Review,
Volume 10, Number 2, August 2005.
• EJ Bernard, Y Azad, AM Vandamme, M
Weait and AM Geretti (2007) HIV forensics:
pitfalls and acceptable standards in the use
of phylogenetic analysis as evidence in
criminal investigations of HIV transmission,
HIV Medicine, 8, 382–387
• Pearshouse, R et al. (2008) Legislation
contagion: the spread of problematic new
HIV laws in Africa. 17th International AIDS
Conference, Mexico City, abstract
WEAE0101, 2008
• UNAIDS Handbook for Legislators on
HIV/AIDS, Law and Human Rights
30
WHAT ARE THE LEGAL IMPLICATIONS OF APPLYING THE CRIMINAL LAW TO HIV?
“Experience over the
past few years in the
UK has demonstrated a
real lack of knowledge
amongst police, for
example on how HIV is
transmitted (there is too
often an incorrect
assumption that
transmission is
inevitable in any act of
sex), or on the
effectiveness of
treatments (for many
police in the UK it is still
an ‘imminent death
sentence’) … All this
simply underscores the
need for effective HIV
training for the police
and criminal justice
system, both on the
biological facts around
HIV and also on the
social and human rights
issues which are so
inextricably involved.”
Yusef Azad, Director of
Policy and Campaigns,
National AIDS Trust (UK)
(NAT)
ENGLAND AND WALES: PARTNERS IN CRIME
England and Wales: Section 20 of the Offences
Against the Persons Act (OAPA) 1861 makes it a
criminal offence to inflict grievous bodily harm,
while Section 18 makes it an offence to do so
with intent. Section 20 carries a maximum prison
sentence of five years while the penalty for a
Section 18 offence may be life in prison.
‘Grievous bodily harm’ can in fact include
psychological harm.42
Non-HIV-specific laws can be applied to the criminal
prosecution of HIV transmission. This case study shows
how civil society groups have successfully worked
alongside policy makers to ensure clearer guidelines
on how the law can (and cannot) be applied.
In England and Wales, the OAPA 1861 is a non HIV-specific
law but has been interpreted by the courts to include the
transmission of a serious disease. To date, HIV is the only
disease to result in a successful conviction under this law
(one case in Scotland, which has different laws, also included
Hepatitis C) which fuels the stigma associated with HIV and
the environment of fear, shame and secrecy in which the
virus thrives.
From 2006 to 2008 HIV advocates in England and Wales
worked with the Crown Prosecution Service (CPS) to develop
guidelines clarifying the application of the law to HIV
transmission. In March 2008 the CPS for England and Wales
released an updated policy on cases involving the intentional
or reckless sexual transmission of infection.43 The National
AIDS Trust is now working with the Association of Chief
Police Officers to develop guidance for police in the
investigation of such cases which will be consistent with the
newly published CPS Guidelines.
Working with police is an important aspect of legal advocacy,
as is outreach to support people living with HIV during their
involvement with law enforcement services. Often, police
assume they have a right to investigate the whole sexual
history of someone living with HIV and they contact past
sexual partners even where there is no evidence of a crime
having been committed. The investigations can be very
invasive for the accused as well as the person bringing the
case to the police’s attention – and can in fact take many
months to resolve, even if the case never goes to court. In
addition, investigations may involve police disclosing
someone’s HIV-status to others, undermining their right to
privacy. There are instances of people living with HIV who
have felt bullied or pressurized by the authorities (including
health advisors) into making a complaint against a sexual
partner. Laws that criminalize transmission can provide a
cloak of legitimacy for unjustified and discriminatory
harassment of people living with HIV.
resources
• NAT (2008) ‘Prosecuting HIV transmission: developing guidelines for
prosecutors’ http://www.nat.org.uk/document/457
• CPS Policy for prosecuting cases involving the intentional or reckless sexual
transmission of infection http://www.cps.gov.uk/publications/
prosecution/sti.html
• Azad, Y. (2008) Developing guidance for HIV prosecutions: an example of
harm reduction? HIV/AIDS Policy and Law Review 13[1]
• Terrence Higgins Trust, Criminal prosecutions for transmitting HIV:
http://www.tht.org.uk/informationresources/prosecutions/
• African HIV Policy Network (2005) Position Paper on the Criminalization of
HIV Transmission, http://www.ahpn.org/downloads/policies/ahpn_position
_on_criminalization1.doc
31
8
WHAT ARE THE HUMAN RIGHTS IMPLICATIONS OF
APPLYING THE CRIMINAL LAW TO HIV?
According to the WHO, ‘health’ refers to a ‘state of complete physical, mental, and social well-being’
(1946). This is significant because it recognizes the wider social and cultural aspects of someone’s life,
not only their physical fitness. As a result, rights relating to education, accessing information and civic
participation have direct bearing on the right to health; and vice versa. However, HIV is not only
directly relevant to the right to health and effective responses to HIV require the implementation of all
human rights (civil and political, economic, social and cultural) and fundamental freedoms of all
people.44 Addressing issues such as stigma and discrimination are therefore pivotal cornerstones of
any rights-based approach to addressing HIV.
Under international law, States have the obligation to
implement for all within their jurisdiction human rights
recognized under customary international law or in treaties
ratified by the State. Implementation of human rights requires
States to ensure that human rights are respected, protected
and fulfilled for everyone. This includes ensuring that domestic
laws, including criminal laws and correctional systems are
consistent with international human rights obligations and are
not misused in the context of HIV or targeted against
vulnerable groups.
Whose rights and whose responsibilities?
Criminal prosecution relating to HIV seems to favour the rights
of people who are not living with HIV over the rights of people
who are. The first criteria for the law to be applied are related
to a virus in the blood; and the alleged action or incident is
only a secondary consideration. In addition, the law can be
selectively applied and can be used as an instrument to further
marginalize or discriminate. This is particularly true for people
whose existence may already be seen as ‘illegal’ such as
undocumented migrants, or sex workers, people who use drugs
or men who have sex with men where there are laws
criminalizing these behaviours.
“The laws do not take into
account existing social,
economic or other existing
inequalities or injustices in
our societies. Therefore those
most needing the protection
of the law are in fact in most
danger of having their
human rights further eroded
by these laws.”
Alice Welbourn, ICW, UK, 2008
Key issues highlighting how criminal prosecutions relating to
HIV undermine fundamental principles of human rights:
• The right to the highest attainable standard of health.45
The criminalization of HIV transmission or exposure does not
recognize (and in fact may reinforce) the barriers and
inequalities to accessing health services.
The law can create barriers to seeking health services.
This is especially true for people on the margins of society
and for those most vulnerable to HIV. For example an
undocumented migrant living with HIV risks deportation in
some countries if they become known to the immigration
officials through medical records. This can be equivalent to
a death sentence if deportation is to a country where ART is
not accessible or available.
“Not enough has been done
to address the violence,
inequality and human rights
abuses that drive the
epidemic – in other words,
not enough has been done
to address the real legal
challenges.”
Richard Pearshouse, Director,
Research & Policy, Canadian
HIV/AIDS Legal Network, 2008
32
WHAT ARE THE HUMAN RIGHTS IMPLICATIONS OF APPLYING THE CRIMINAL LAW TO HIV?
Member States of the
UN have recognized
that “the full realization
of all human rights and
fundamental freedoms
for all is an essential
element in the global
response to the
HIV/AIDS pandemic,
including in the areas of
prevention, treatment,
care and support, and
recognize that
addressing stigma and
discrimination is also a
critical element in
combating the global
HIV/AIDS pandemic.”
Political Declaration on
HIV/AIDS, 200647
Access to appropriate health services can be difficult. In
some countries, a woman who does not access PMTCT
services could be prosecuted for passing the virus on to her
child, even though the law does not recognize the
difficulties she might face in accessing them. These could
include the proximity of the services, the cost and
opportunity of accessing them, the quality of the services
available, as well as the potential stigma or discrimination
she may face (or fears) if she is HIV-positive.
Quality of care. Clients from vulnerable groups may face
stigma from clinic staff and may receive a lower quality of
care compared to other clients.
• The right to privacy. Criminalization of HIV transmission or
exposure does not recognize the sensitivity and obstacles to
disclosure. When and how people choose to disclose their
status is a very personal choice – it is not for any other
individual, or the state for that matter, to force or expect
disclosure. If a person is under investigation for an HIVrelated crime, their status becomes common information to
those conducting the investigation and often more publicly.
The concept of confidentiality is ignored and even if not
prosecuted or convicted, their disclosure is no longer in their
own hands. However, the right to privacy is not absolute, and
in some very limited circumstances a person’s privacy may be
interfered with by the State in accordance with the
mechanisms set out in the relevant human rights
conventions.46
• Equality in the eyes of the law. In all consensual sexual
relationships, each partner has equal responsibility to protect
their own sexual and reproductive health, yet the
criminalization of HIV transmission or exposure shifts the
balance of responsibility onto a person living with HIV. While
the laws relating explicitly to HIV transmission or exposure
are not gender specific, there may be other statutory or
customary laws that do not treat all people the same (for
example laws impeding property ownership or inheritance
for women or laws that criminalize debauchery or same sex
relationships).
resources
Gruskin, S. and Tarantola. D. (2005) “Health and Human Rights”, in Perspectives
on health and human rights, in S. Gruskin et al (eds), pp. 3-58.
UNAIDS International Guidelines on Health and Human Rights
UNGASS (2008) Declaration of Commitment on HIV/AIDS and Political Declaration
on HIV/AIDS: midway to the Millennium Development Goals: Report of the
Secretary-General (2008). UN Document A/RES/60/262.
Amnesty Guidelines on Health and Human Rights, http://www.amnesty.org/en/
health-and-human-rights/background (Accessed 2008)
Human Rights Watch: HIV and human rights
http://www.hrw.org/doc/?t=hivaids&document_limit=0,5 (Accessed 2008)
WHAT ARE THE HUMAN RIGHTS IMPLICATIONS OF APPLYING THE CRIMINAL LAW TO HIV?
33
EXPERT
REASSERTING RIGHTS Susan Timberlake, Human Rights Advisor, UNAIDS, 2008
The threat of criminal prosecution intensifies a climate of
denial, secrecy, and fear. It creates legal liability without
empowering citizens to do what they want to do anyway:
avoid getting infected, avoid infecting others, and live. It
creates an ‘us’ and ‘them’ mentality when HIV has taught us
that we have mutual responsibility for sexual health. A
human rights achievement of the HIV epidemic has been the
recognition of positive people as equal and critical actors in
the response.
In the Political Declaration on HIV (2006),
governments agreed that the way to deal with the
epidemic and to protect human rights was to make
‘prevention of HIV infection the mainstay of national
responses to the pandemic’ and they pledged ‘to
promote a social and legal environment that is
supportive of and safe for voluntary disclosure of
HIV-status’.48 Criminal sanctions create the opposite
of such an environment.
Alternatives to criminalization of HIV transmission or
exposure are often hard work because they challenge longstanding social taboos and inequities, yet they also can
protect both public health and human rights. Three key
principles are:
1. To do what works on a much larger scale. Getting HIV
prevention, treatment, care and support programmes to
those most vulnerable to infection and to those already
infected should be the focus of our global energies. But
governments still have not expanded prevention
programmes (including PMTCT) nor have they ensured
anywhere near the necessary coverage of vulnerable and
at risk populations – women, young people, men who
have sex with men, drug users and sex workers.49
2. Reduce HIV vulnerability and risk. For women and girls,
this means governments need to protect them through
law and social change programmes from gender
inequality and violence, including sexual violence inside
and outside marriage. All too few governments pass
marital rape laws or seriously enforce laws against
domestic violence, rape and early marriage. Nor are there
sufficient laws or programmes to empower women and
girls in educational and economic terms to help them
become less vulnerable to HIV.
3. Empower people living with HIV. In many parts of the
world, people living with HIV still stand to lose everything
(family, job, home, community) and thus have every
incentive to avoid getting tested, disclosing their status, or
engaging in any behaviour that might reveal their status,
such as safer sex. People living with HIV must have the
knowledge, means and support to know their status and
know how to avoid infecting others and avoid contracting
any other infections. This includes being protected from
stigma and discrimination so that they can be open about
their status or about practicing safer sex.
resources
• UNAIDS (2008). Policy Brief Criminalization
of HIV Transmission.
34
99
“All strategies, to be
effective, need to take a
holistic view of how HIV
affects all our lives –
and really need to have
the fully informed
involvement of those
most affected by these
issues at their heart.”
Alice Welbourn, ICW, UK,
2008
WHAT LAWS AND STRATEGIES SHOULD
REPLACE CRIMINALIZATION?
There are clear arguments from a health and human rights perspective about why the application of
the criminal law to HIV is doing more harm than good. The most effective strategies will always be
those that are relevant to local context and need, and will be informed by the issues and priorities of
people living with HIV. In so doing, they will be more effective in preventing HIV and in promoting
public health.
People living with HIV are heterogeneous and represent a cross
section of all sectors of society. Issues of race, ethnicity, gender,
orientation, age, language, and vulnerability will all affect how
effective initiatives need to be tailored. Information and support
around issues such as safer sex, having children and safer
injecting use should be available in all settings including
medical centres, treatment delivery sites, family planning clinics,
home-based care programmes and community centres.
Specifically tailored information and support based on the
realities of people living with HIV needs to be provided at places
where particular key vulnerable populations meet and explicit
information should be developed that can inform the choices
that people living with HIV (and their sexual partners) make.
Suggested strategies and alternatives to criminalization will be
most effective when implemented in combination, and include:
Strategy One: Create a protective and enabling legal
environment
Too often HIV legislation is inherently insensitive and has led to
simplistic laws driven by prejudice rather than evidence. Many
of the laws that are being used to prosecute HIV transmission
and exposure are negating – not promoting – human rights.
Legislators, advocates and activists alike should adhere to the
guidelines that exist to ensure that human rights principles
underpin legislation.50 In so doing, the law should protect the
human rights of all, including people living with HIV and those
most vulnerable to HIV, which covers all civil and political,
economic, social and cultural rights. This should ensure the
right to privacy, confidentiality, informed consent, voluntary
disclosure, and facilitate equitable access to services.
Strategy Two: Meaningfully involve people living
with HIV
People living with HIV must be involved in the decisions relating
to their lives. Too often laws, policies, management decisions,
and health service delivery priorities are determined without the
meaningful involvement of people living with HIV. In accordance
with the Greater Involvement of People Living with HIV/AIDS
(GIPA) Principle,51 the active engagement of people living with
HIV in determining their own unique prevention reality is key to
ensuring relevance, efficacy and applicability.
Strategy Three: Initiate, scale up and make positive
prevention a reality in all national HIV responses
Historically, traditional prevention efforts have frequently
reached out only to those who are HIV negative. This is clearly
WHAT LAWS AND STRATEGIES SHOULD REPLACE CRIMINALIZATION?
of crucial importance, yet it ignores the needs, and important
role, of those who are HIV-positive. The HIV prevention agenda
needs to keep pace with new and dynamic demands of the
epidemic – and this includes responding to the reality of
treatment access, the increasing number of sero-discordant
relationships and the importance of addressing the specific
issues and rights of people living with HIV.
Responsibility for safer and responsible sexual behaviour, and
for preventing HIV transmission, should lie with everyone
irrespective of known and/or perceived HIV-status. Positive
prevention encompasses a broad set of principles and actions
that empower people living with HIV to have the knowledge
and power to manage their health and have healthy lives.52
This should include the following elements: treatment literacy
and nutrition; sexual and reproductive health; avoiding other
sexually transmitted or opportunistic infections; and the
realization of rights to a productive, satisfying and enjoyable
life. Positive prevention should be envisaged as part of a
broader sexual and reproductive health strategy and included
as a component of comprehensive HIV prevention initiatives.
Promoting a culture of shared responsibility (and not one of
blame and criminality) could also improve communication and
equality within relationships. HIV programmes should deliver a
comprehensive package of inclusive messages which could also
act as a model for stigma reduction.
Strategy Four: Promote a stigma free and empowering
environment
Campaigns and initiatives based on acceptance, awareness,
compassion and understanding can be more effective than
those based on punishment or exclusion in promoting public
health and human rights. Too often interventions are based on
fear (of criminal prosecution or of disease transmission) rather
than on pillars of positive living, sexual pleasure, hope and
empowerment. Initiatives should instead include better
programmes for counselling and supporting disclosure as part
of broad-based programmes on stigma and discrimination.
They should also include advocacy to enable the enactment of
anti-discrimination laws to protect the rights of everyone
including people living with HIV.
Strategy Five: Adopt long-term strategies to address
underlying inequalities
Too often laws undermine the real offence – for example the
violation of women’s rights – by focusing on the HIV-status of
the offender. This could be seen as an ‘easy target’ rather than
dealing with much deeper and long-term issues such as gender
imbalances, racism, xenophobia or homophobia. Long-term
investment should be made to tackle the underlying
inequalities that perpetuate vulnerability to HIV. This would
better enable advocates, lawyers and policy makers to address
the demand for the criminalization of HIV transmission or
exposure and more effectively promote both public health and
human rights.
35
“Efforts aimed at
curbing the spread of
HIV/AIDS have a greater
chance of success in a
climate of openness and
education than in one
of prohibition and
punishment.”
Grace Tikembenji Malera,
Deputy Director for Legal
Services, Malawi Human
Rights Commission, 200753
36
WHAT LAWS AND STRATEGIES SHOULD REPLACE CRIMINALIZATION?
EXPERT
10 REASONS WHY CRIMINALIZATION IS A BAD IDEA Edwin Cameron, Justice of the Supreme Court, South Africa
Today, one of the most serious issues in the AIDS
epidemic is the use of criminal statutes and
criminal prosecutions against HIV transmission.
believe these reasons are entirely counter-productive
and they need to be challenged, rationally,
powerfully and systematically.
Such laws are increasingly wide in their
application, and frightening in their effects. They
aggressively attack rational efforts to lessen the
impact and spread of the epidemic and are
creating a crisis in HIV management and
prevention efforts.
1. Criminalization is ineffective as in the majority
of cases, the virus spreads when two people have
consensual sex, neither of them knowing that one
has HIV.
So what lies behind this increasing trend of
criminalization? What is the rationale for such laws?
2. Criminal prosecutions are a misguided substitute
for measures that really protect those at risk of
contracting HIV. The focus should be on ending
deaths, stigma, discrimination, and suffering.
HIV is a fearsome virus, and its effects are
potentially deadly. The justification is that public
officials should be able to invoke any available and
effective means to counter its spread. African
lawmakers and policy-makers, in particular, have
good reason to look for strong remedies. Many
African countries face a massive epidemic with
agonising social and economic costs and therefore
reversing the spread of HIV is vital. However, I
3. Far from protecting women, criminalization
victimises, oppresses and endangers them. In
Africa most people who know their HIV-status are
female. The material circumstances in which many
women find themselves – especially in Africa –
make it difficult and often impossible for them to
negotiate safer sex, or to discuss HIV at all. These
provisions will hit women hardest, and will
expose them to assault, ostracism and further
stigma. They will become more vulnerable to HIV,
not less.
4. Criminalization is often unfairly and selectively
enforced. Prosecutions and laws single out
already vulnerable groups – like sex workers, men
who have sex with men and, in European
countries, black males.
5. Criminalization places blame on one person
instead of responsibility on two. For nearly three
decades the universal public information message
has been that no one is exempt from it. So the
risk of HIV (or any sexually transmitted infection)
must now be seen as an inescapable facet of
having sex. It is inappropriate and unfair to place
all the blame on the person with HIV.
6. Such laws are difficult and degrading to apply.
This is because they intrude on the intimacy and
privacy of consensual sex. No one suggests that a
person knowing they have HIV, who sets out
intending to infect another, and achieves their
WHAT LAWS AND STRATEGIES SHOULD REPLACE CRIMINALIZATION?
aim, ought to escape prosecution. But in cases
where there is no deliberate intention, the
categories and distinctions of the criminal law
become fuzzy and incapable of offering clear
guidance.
7. Many of these laws in existence are extremely
poorly drafted. Partly because it is difficult to
prove an offence that involves consensual sex,
and because of the difficulties of applying the
categories of the criminal law, many of these
laws end up being a ‘hodge-podge’ of confused
legislative intent and bad drafting.
8. Criminalization increases stigma. It is stigma
that makes those at risk of HIV reluctant to be
tested; it is stigma that makes it difficult, often
impossible, for them to speak about their
infection; and it is stigma that continues to
hinder access to the life-saving ART therapies
that are now increasingly available. Such laws
and prosecutions in turn only add fuel to the
fires of stigma.
9. Criminalization is a blatant deterrent to
testing. Across Africa, the life-saving drugs that
suppress the virus and restore the body to
health are becoming increasingly available. But
why should any woman in Kenya want to find
out her HIV-status, when her knowledge can
only expose her to risk of prosecution? The
laws are not just a war on women. They are a
war on all people with HIV, and they constitute
an assault on good sense and rationality in
dealing with the epidemic.
10. Criminalization assumes the worst about
people with HIV, and in doing so it punishes
vulnerability. Evidence shows that countries
with human rights laws that encourage the
undiagnosed to test for HIV do much better at
containing the epidemic than those that have
adopted punitive and moralistic strategies,
including those relying on the criminal law as a
sanction.
In light of all of this, the clear goal should be to
fight against stigma, against discrimination, and
against criminalization – and to fight for justice,
good sense, effective prevention measures and
for access to treatment.
37
38
MAURITIUS: WORKING IN HARMONY – LOBBYING FOR BETTER LAWS IN MAURITIUS
Mauritius: HIV and AIDS Preventive
Measures Act 2006. The act provides
measures for the control and prevention of
the propagation of HIV by (a) making
available HIV testing facilities; (b) the
registration of those facilities; (c) the
testing of donated blood; (d) the
counselling of persons affected with HIV or
AIDS; and (e) a system of syringe and
needle exchange.
It is possible to make a difference and to
engage policy makers to enact laws based on
sound human rights principles and approaches,
and this example from Mauritius shows how.
Although Mauritius has a relatively low HIV
prevalence the virus has spread mainly among
people who use drugs. According to UNAIDS,
exposure to non-sterile injecting equipment is the
most important factor for HIV infection in
Mauritius.54 Injecting drug use was the cause of the
highest number of new HIV infections: 92% in 2005
and 85.2% in 2006.55 As a result, an HIV bill was in
the pipeline as the Minister of Justice and the
Minister of Health were pressured by civil society,
which wanted to introduce a Needle Exchange
Programme. When it came to drafting the law, it
became apparent that the bill would include a
provision for the prosecution for the ‘wilful
transmission of HIV’.
In response to this, the AIDS and Rights Alliance of
Southern Africa (ARASA) and Prevention Information
et Lutte Contre le SIDA (PILS) organized a workshop
with civil society, parliamentarians, state law officials
and others in Mauritius about human rights and the
disadvantages of the criminalization of HIV
transmission. They discussed the real impact of such
laws on women and other vulnerable groups and
why – despite the intention behind the law
appearing good – it actually constitutes bad public
policy. ARASA assisted local NGOs with drafting
submissions on the proposed laws that they can use
to engage with parliamentarians and parliamentary
sub-committees and to submit as formal submissions
on the law. Local partners continued to lobby
parliament and as a result of this the bill was
adjusted. The act was passed in December 2006.56
Key elements of the act include an emphasis on
confidentiality and human rights, guaranteeing that
people living with HIV have equal rights to
employment and health care. It also makes it illegal
to impose HIV testing as a pre-condition for
employment or continued employment, and it
includes penalties for HIV discrimination. It also
includes specific details about harm reduction and
needle exchange. In the period from December 2006
to March 2007 more than 2,000 syringes were
exchanged.57
However, there are challenges. To date no one has
used this law to claim reparation in a case of
discrimination even though these cases exist.
According to Nicolas Ritter, the Director of PILS,
“no one is, for the moment, willing to go public
while going to court.” PILS is working with people
living with HIV to help them know their rights and to
feel empowered to realize them.
While civil society still has some concerns about the
act and would like to see it improved further, the
consultation and advocacy was able to ensure that
the criminal prosecution of ‘wilful transmission’ and
other particularly detrimental clauses (such as
compulsory disclosure) were removed before the bill
was passed.
39
10 WHY MUST WE ACT NOW?
It takes time to advocate for good strategies and laws – and for that advocacy to lead to law reform and an environment which helps
prevent HIV transmission. In the meantime, in countries where laws that criminalize HIV transmission or exposure already exist and are
being utilized, efforts should focus on mitigating the stigma and discrimination that such legislation and resulting investigations and
prosecutions can cause.
• To prevent new laws being passed. Passing
new legislation is a long and drawn out process and
it will be more effective to lobby policy and law
makers to ensure that laws on the criminalization of
HIV transmission or exposure are not put into place.
We must also strengthen existing HIV prevention
efforts.
• To advocate the repeal of existing HIV
specific laws. In countries that already criminalize
the transmission of HIV, evidence should be
collected to document the impact of these laws and
the evidence should be used to advocate for legal
reform and repeal the laws specific to the
criminalization of HIV transmission or exposure.
• To raise awareness about the specific laws to
ensure that people living with HIV are
familiar with the legal situation in their
country. In countries where prosecutions are
already taking place, there is an urgent need to act
to support people living with HIV who may not be
aware of these laws nor their rights to legal
representation. This is especially true for young
people living with HIV who may have only recently
been diagnosed and may be largely unaware of
their rights in regard to the law and their rights
generally.
• To promote and protect the rights of people
living with HIV and advocate for more legal
and other psycho-social support services.
Working with and sensitizing the police, health staff,
the judiciary and the media should be an important
aspect of legal advocacy. This should also include
supporting people living with HIV during their
experiences with law enforcement and the media.
• To ensure that when criminal laws are
applied they focus on the offence and not
HIV-status. In most cases (for example during the
prosecution itself or in the media coverage) the HIVstatus of the perpetrator is highlighted, when it
should be irrelevant. Advocates, police and lawyers
alike should ensure that it is the act itself that is the
focus, not an individual’s HIV-status.
• To mitigate the impact of these laws where
they are already being applied. Some
strategies include:
1. Improving access to prevention services for
marginalized groups, including harm reduction.
2. Advocating for guidelines or clarity about the
meaning of the laws.
3. Assisting people living with HIV to know their
rights and responsibilities, and to understand the
implications of the legal framework in which
they live.
4. Advocating for a supportive and stigma-free
environment to promote voluntary disclosure and
providing counselling services for newly diagnosed
people.
5. Sensitizing police so that they are informed about
the science and realities of HIV as well as the
potential emotional and social impacts of an
investigation.
6. Building closer relationships between community
support organisations and the police (in advance
of cases).
7. Identifying local lawyers and effective legal
support services who can represent and provide
appropriate and reliable legal advice for people
charged with HIV transmission or exposure.
8. Providing appropriate legal services or referrals
and other emotional support for people who find
themselves involved in a criminal investigation
relating to HIV.
9. Exploring possibilities of mediation or settlement
options instead of a criminal prosecution.
10.Improving the human rights of persons in
detention.
resources
• UNAIDS. Legal Aspects of HIV/AIDS – A guide for legal and policy
reform
• International Community of Women Living with HIV/AIDS
Criminalization webpage http://icw.org/node/354
40
ANNEX 1: TABLE OF COUNTRIES AND LAWS WHERE HIV TRANSMISSION OR EXPOSURE HAS BEEN
CRIMINALISED AND OTHER LAWS RELATING TO HIV VULNERABILITY
Country
Afghanistan
Albania
Algeria
Andorra
Angola
Antigua and Barbuda
Argentina X
Armenia
Australia
Austria
Azerbaijan*
Bahamas §
Bahrain
Bangladesh
Barbados
Belarus
Belgium
Belize
Benin
Bermuda
Bhutan
Bolivia X
Bosnia and Herzegovina
Botswana
Brazil
Brunei
Bulgaria
Burkina Faso*
Burundi
Cambodia §
Cameroon
Canada
Cape Verde
Central African Republic
Chad
Chile X
China
Colombia X
Comoros
Congo (Brazzaville)
Congo Democratic Republic of the *
Costa Rica* X
Côte d’Ivoire
Croatia
Cuba X
Countries that have
enacted specific laws to
criminalize HIV
transmission or exposure1
Countries where
non-specific HIV laws
have applied to HIV
transmission or exposure1
Countries considering or
proposing laws to
criminalize HIV
transmission or exposure;
or with unconfirmed data
and seeking additional
information1 X §
Countries where same sex
activities between
consenting adults is
prohibited2
Countries where sex work
(‘prostitution’) is deemed
‘illegal’3
Countries which impose
coercive or compulsory
treatment for people who
use drugs and/or the
death penalty is applied
for drug offences4
TABLE OF COUNTRIES AND LAWS
Country
Cyprus
Czech Republic
Denmark
Djibouti
Dominica
Dominican Republic
East Timor (Timor Timur)
Ecuador X
Egypt
El Salvador X
Equatorial Guinea
Eritrea
Estonia
Ethiopia
Fiji
Finland
France
Gabon
Gambia, The
Georgia
Germany
Ghana
Greece
Grenada
Guatemala X
Guinea
Guinea-Bissau
Guyana
Haiti
Honduras X
Hungary
Iceland
India
Indonesia*
Iran
Iraq*
Ireland
Israel
Italy
Jamaica
Japan
Jordan
Kazakhstan
Kenya
Kiribati
Korea, North
Korea, South
Kuwait
Kyrgyzstan
Laos
Latvia
Countries that have
enacted specific laws to
criminalize HIV
transmission or exposure1
Countries where
non-specific HIV laws
have applied to HIV
transmission or exposure1
Countries considering or
proposing laws to
criminalize HIV
transmission or exposure;
or with unconfirmed data
and seeking additional
information1 X §
Countries where same sex
activities between
consenting adults is
prohibited2
Countries where sex work
(‘prostitution’) is deemed
‘illegal’3
41
Countries which impose
coercive or compulsory
treatment for people who
use drugs and/or the
death penalty is applied
for drug offences4
42
TABLE OF COUNTRIES AND LAWS
Country
Lebanon
Lesotho
Liberia
Libya
Liechtenstein
Lithuania
Luxembourg
Macedonia, Former Yugoslav Republic of
Madagascar
Malawi
Malaysia
Maldives
Mali
Malta
Marshall Islands
Mauritania
Mauritius
Mexico X
Micronesia, Federated States of
Moldova
Monaco
Mongolia
Montenegro
Morocco
Mozambique
Myanmar (Burma)
Namibia
Nauru
Nepal
Netherlands
New Zealand
Nicaragua X
Niger*
Nigeria
Norway
Oman
Pakistan
Palau
Panama X
Papua New Guinea §
Paraguay X
Peru X
Philippines §
Poland
Portugal
Qatar
Romania
Russia
Rwanda
Saint Kitts and Nevis
Saint Lucia
Countries that have
enacted specific laws to
criminalize HIV
transmission or exposure1
Countries where
non-specific HIV laws
have applied to HIV
transmission or exposure1
Countries considering or
proposing laws to
criminalize HIV
transmission or exposure;
or with unconfirmed data
and seeking additional
information1 X §
Countries where same sex
activities between
consenting adults is
prohibited2
Countries where sex work
(‘prostitution’) is deemed
‘illegal’3
Countries which impose
coercive or compulsory
treatment for people who
use drugs and/or the
death penalty is applied
for drug offences4
TABLE OF COUNTRIES AND LAWS
Country
Countries that have
enacted specific laws to
criminalize HIV
transmission or exposure1
Countries where
non-specific HIV laws
have applied to HIV
transmission or exposure1
Countries considering or
proposing laws to
criminalize HIV
transmission or exposure;
or with unconfirmed data
and seeking additional
information1 X §
Countries where same sex
activities between
consenting adults is
prohibited2
Countries where sex work
(‘prostitution’) is deemed
‘illegal’3
43
Countries which impose
coercive or compulsory
treatment for people who
use drugs and/or the
death penalty is applied
for drug offences4
Saint Vincent & The Grenadines
Samoa
San Marino
Sao Tome and Principe
Saudi Arabia
Senegal
Serbia
Seychelles
Sierra Leone
Singapore
Slovakia
Slovenia
Solomon Islands
Somalia
South Africa §
Spain
Sri Lanka
Sudan
Suriname
Swaziland
Sweden
Switzerland
Syria
Taiwan
Tajikistan
Tanzania
Thailand §
Togo
Tonga
Trinidad and Tobago
Tunisia
Turkey
Turkmenistan
Tuvalu
Uganda
Ukraine
United Arab Emirates
United Kingdom
United States of America
Uruguay X
Uzbekistan
Vanuatu
Vatican City
Venezuela X
Vietnam §
Western Sahara
Yemen
Zambia
Zimbabwe
1 Data is incomplete at time of printing and has been taken from different sources. For Europe, the information was taken from ‘Criminalisation of HIV Transmission in Europe’ http://www.gnpplus.net/criminalisation/rapidscan.pdf. For African countries which have instated or are contemplating N’Djamena Model Laws, see NAM’s
aidsmap news at http://www.aidsmap.com/en/news/B250DD99-C534-4C29-A078-EDF602EFB615.asp and for other reported cases/incidents, see Criminal HIV Transmission blogspot at http://criminalhivtransmission.blogspot.com/. The map will be updated with the results from the GNP+ Criminalisation Scan in 2009.
X Additional sources include Edgar Carrasco, Director Human Rights, ACCSI, data prepared 2007, from Universitas Friburgensis www.unifr.ch/ddp1/derechopenal/ley.htm. § unconfirmed data under review. 2 Data from the International Lesbian and Gay Association (ILGA) and Amnesty International: http://www.ilga.org/
statehomophobia/ILGA_State_Sponsored_Homophobia_2008.pdf; Amnesty International Report 2008, at http://thereport.amnesty.org/eng/regions/middle-east-and-north-africa/morocco-and-western-sahara) 3 Data from the US State Department. This column has been shaded is male or female adult (generally 18yr but a few
exceptions) ‘prostitution’ has been categorised as illegal, and where penalties can be imposed under the law. It has not been possible to differentiate between different aspects of sex work that are criminalisation (for example sex, solicitation, the transaction etc) because the data is not currently available. 4 Data taken from
the International Harm Reduction Association’s report, Global State of Harm Reduction 2008 at http://www.ihra.net/Assets/582/1/GSHRFullReport.pdf; the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA)‘s European Legal Database on Drugs at http://eldd.emcdda.europa.eu/html.cfm/index5174EN.html;
and the Drug Policy Alliance Network (DPAN) at http://www.drugpolicy.org. * Any country that has laws that do not fully criminalise aspects related to HIV vulnerability but have some elements have not been shaded in the table but have been shaded slightly darker on the map.
44
ENDNOTES
1 http://www.living2008.org/
2 UNAIDS Criminalization of HIV transmission,
http://www.unaids.org/en/PolicyAndPractice/HumanRights/
humanrights_criminalization.asp (Accessed October 2008)
3 S Burris, L Beletsky, J Burleson, P Case, Z Lazzarini (2007)
Do Criminal Laws Influence HIV Risk Behavior? An Empirical
Trial, 1st Annual Conference on Empirical Legal Studies
Paper , http://papers.ssrn.com/sol3/papers.cfm?abstract_
id=913323 (Accessed 2008)
4 Research on the public health impact is very limited. See for
example Sigma Research (2005) Grievous Harm: the use of
the Offences Against the Persons Act 1861 for sexual
transmission of HIV, http://www.sigmaresearch.org.uk/
downloads/report05b.pdf. See also Lazzarini, Z., S. Bray and
S. Burris (2002), Evaluating the Impact of Criminal Laws on
HIV Risk Behaviours: A state of the art assessment of law
and policy, Journal of Law, Medicine and Ethics, Vol 30, p
224-238: ‘with criminal law as a means of preventing HIV,
we can say that the trial is not over, but the case looks
weak’.
5 http://www.unaids.org/en/KnowledgeCentre/Resources/
FeatureStories/archive/2007/20071106_criminalization_HIV
_transmission.asp
6 UNAIDS (2002) Policy Options Paper
7 Ten reasons why criminalization of HIV exposure of
transmission is bad public policy. Open Society Institute.
Document under review.
http://www.soros.org/health/10reasons
8 Sigma Research (2005) Grievous Harm: the use of the
Offences Against the Persons Act 1861 for sexual
transmission of HIV, http://www.sigmaresearch.org.uk/
downloads/report05b.pdf
9 International Lesbian and Gay Association
http://www.ilga.org/statehomophobia/ILGA_State_
Sponsored_Homophobia_2008.pdf, (accessed 24/08/08)
10 International Lesbian and Gay Association State-sponsored
Homophobia: A World Survey of Laws Prohibiting Same Sex
Activity Between Consenting Adults, Daniel Ottoson
http://www.ilga.org/statehomophobia/ILGA_State_
Sponsored_Homophobia_2008.pdf (accessed 24/08/08)
11 Criminalization of HIV transmission: Where, what and why?,
Human Right and HIV/AIDS Now more than Ever (2008)
http://www.aids2008.org/Pag/ppt/WESY0902.ppt#256,1,
Criminalization of HIV transmission: Where, what and why?
12 HIV/AIDS Policy and Law Review, Canadian HIV/AIDS Legal
Network, Volume 12, No. 2/3, (2007) Legislation contagion:
the spread of problematic new HIV laws in Western Africa;
See also http://criminalhivtransmission.blogspot.com/search/
label/Africa (Accessed 2008
Mexico AIDS Conference Selective global responses to HIV
‘crimes’(2008) http://edwinjbernard.com/_Media/mexico_
aids-conference_2008-2.pdf
13 Including Angola, the Democratic Republic of Congo,
Malawi, Madagascar, Tanzania and Uganda.
14 By a person with full knowledge of his/her HIV/AIDS status
to another person including via sex, needle-sharing, and
mother-to-child transmission.
15 It includes the UNAIDS/OHCHR International Guidelines on
HIV and Human Rights, as well as the UNAIDS/UNDP/IPU
Handbook for Parliamentarians: Taking Action against HIV.
16 UNAIDS (2004) Recommendations for alternative language
to some problematic articles in the N’Djamena legislation on
HIV. http://data.unaids.org/pub/Manual/2008/20080912
_alternativelanguage_ndajema_legislation_en.pdf
17 Pink News (2005) Egypt accused of “indifference to justice
and public health” as HIV convictions upheld
http://www.pinknews.co.uk/news/articles/2005-7770.html
Criminal HIV Transmission Blog – http://criminalhiv
transmission.blogspot.com/search/label/Egypt
18 Human Rights Watch (2008) Egypt: Stop Criminalizing HIV,
http://hrw.org/english/docs/2008/02/05/egypt17972.htm
19 BBC News Online (2008) Egypt police widen HIV arrests
http://news.bbc.co.uk/1/hi/world/middle_east/7247228.stm
(accessed 28/08/08)
20 Human Rights Watch (2006) India: Repeal Colonial-Era
Sodomy Law http://hrw.org/english/docs/2006/01/
11/india12398.htm
21 International Community of Women Living with HIV/AIDS
(2008) Letter to High Commissioner of Human Rights in
Sierra Leone regarding HIV and AIDS Prevention and Control
Act of 2007.
22 Ten reasons why criminalization of HIV exposure of
transmission is bad public policy. Open Society Institute.
Document under review.
http://www.soros.org/health/10reasons
23 The information is based on legal research, test case
litigation, and fact finding investigations conducted by the
International Women’s Human Rights Clinic (IWHRC) at
Georgetown University Law Center in Washington, DC, USA,
with partner groups in eight African countries – western
(Ghana, Nigeria), eastern (Kenya, Tanzania, Uganda), and
southern (Namibia, South Africa, Swaziland).
24 Criminal Code of Canada http://laws.justice.gc.ca/en/
showdoc/cs/C-46/bo-ga:l_VIII//en#anchorbo-ga:l_VIII
(accessed 17/09/2008)
25 Globe and Mail (2006) Mother convicted of hiding HIV
status for son’s birth,
http://www.theglobeandmail.com/servlet/story/RTGAM.2006
0807.waids-born07/BNStory/National/home
26 International AIDS Conference Edwin Cameron plenary
speech (2008) http://www.aidsportal.org/repos/080808_
ias_plenary_transcript.pdf)
27 Daily Mail, UK, 15 May 2004.
28 The Sun, UK,15 May 2004.
29 The Independent, UK,15 May 2004.
30 Rolake Odetoyinbo, personal communication.
31 The Daily Nation, Kenya, 3 June 2005. Lucy Oriang’,
Commentary, ‘Weep for little Laura – and think’.
32 The Daily Nation, Kenya, 10 April 2006 Letters, ‘Why are
men behaving so badly?’
33 Panos London and the African HIV Policy Network (2007)
Start the Press http://www.panos.org.uk/?lid=21356
34 New York Times, USA, 20 August 1998, ‘Man Faces Felony
Charge Of Exposing Girl to HIV’.
35 Shevory, T. C. (2004). Notorious H.I.V.: The Media Spectacle
of Nushawn Williams. University of Minesota Press.
36 Heart of Darkness: AIDS, Africa, and Race, Philip Alcabes, The
Virginia Quarterly Review, Winter 2006.
37 Shevroy (2004). See also Lemelle, A.J. (2003), Linking the
Structure of African American Criminalisation to the Spread
of HIV/AIDS, Journal of Contemporary Criminal Justice, Vol
19, No 3, p 270-292.
38 The Guardian, UK, 30 August 2008: The MMR hoax.
39 Open Society Institute (forthcoming) Ten reasons why
criminalization of HIV exposure of transmission is bad public
policy. Document under review.
http://www.soros.org/health/10reasons
40 The technique, known as ‘phylogenetic testing’, is not
available in many countries around the world. The tests seek
to identify similarities or differences in the genetic
composition of the HIV viruses from two or more parties.
41 AHPN (2005) Position Paper on Criminalization.
http://www.ahpn.org/downloads/policies/ahpn_position_on
_criminalization1.doc (Accessed 2008)
42 UK Statute Law Database http://www.statutelaw.gov.uk
(Accessed 2008)
43 Policy for Prosecuting the Intentional or Reckless Sexual
Transmission of Infection, http://www.cps.gov.uk/
publications/docs/equality_eia_sti.pdf
44 UNAIDS International Guidelines (p. 16).
45 UNHCR (1966). International Covenant on Economic, Social
and Cultural Rights (ICESCR), http://www.unhchr.ch/html/
menu3/b/a_cescr.htm (Accessed 2008)
46 UNAIDS Policy Paper (2008)
http://data.unaids.org/pub/BaseDocument/2008/20080731_
jc1513_policy_criminalization_en.pdf .
47 http://data.unaids.org/pub/Report/2006/20060615
_HLM_PoliticalDeclaration_ARES60262_en.pdf)
48 Political Declaration on HIV (2006), A/RES/60/262 (Accessed
2008)
49 Declaration of Commitment on HIV/AIDS and Political
Declaration on HIV/AIDS: midway to the Millennium
Development Goals Report of the Secretary-General at
http://data.unaids.org/pub/Report/2008/20080429_sg_prog
ress_report_en.pdf (accessed 2008)
50 For example the UNAIDS/OHCHR International Guidelines on
HIV and Human Rights, as well as the UNAIDS/UNDP/IPU
Handbook for Parliamentarians: Taking Action against HIV.
51 http://www.ecpp.co.uk/parisdeclaration.htm
52 GNP+ and Living 2008 Partnerships (forthcoming). Summit
Report, www.living2008.org . See also UNFPA, UNAIDS,
WHO and IPPF (2005). Sexual and Reproductive Health and
HIV/AIDS, A Framework for Priority Linkages.
53 Tikembenji Malera, G. (2007). The Efficacy and limits of
criminal punishment as a means of preventing the spread of
HIV/AIDS in Malawi. MLJ, Vol 1, Issue 1, p48.
54 UNAIDS (2007) Epidemic Update: Sub-Saharan Africa, p7.
55 http://www.thebody.com/content/news/art40199.html
56 Communication with Michaela Clayton, ARASA, and Nicolas
Ritter, Prevention information et lutte contre le SIDA (PILS).
57 HIV hits drug users in Mauritius, Mail and Guardian
Online(2007) http://www.mg.co.za/article/2007-02-20-hivhits-drug-users-in-mauritius
45
ORGANIZATIONS PROVIDING INFORMATION AND ADVOCACY SUPPORT:
AFRICA
INTERNATIONAL
THE INTERNATIONAL PLANNED PARENTHOOD FEDERATION (IPPF)
AIDS Legal Network (South Africa):
www.aln.org.za
AIDS Rights Alliance for Southern
Africa (ARASA): www.arasa.info
Amnesty International:
www.amnesty.org/en/health-andhuman-rights
The ATHENA Network:
www.athenanetwork.org
Global Network of People Living with
HIV/AIDS (GNP+): www.gnpplus.net
Human Rights Watch (HRW):
www.hrw.org
Interagency Coalition on AIDS and
Development (ICAD):
www.icad-cisd.com
International Community of Women
Living with HIV/AIDS (ICW):
www.icw.org
International Planned Parenthood
Federation (IPPF): www.ippf.org
Joint United Nations Programme on
HIV/AIDS (UNAIDS): www.unaids.org
Open Society Institute (OSI):
www.soros.org
Panos Global AIDS Programme:
www.panosaids.org
The People Living with HIV Stigma
Index: www.stigmaindex.org
United Nations Development
Programme (UNDP): www.undp.org
United Nations Population Fund
(UNFPA): www.unfpa.org
World AIDS Campaign:
www.worldaidscampaign.org
IPPF is a global service provider and a leading advocate of sexual and
reproductive health and rights for all. It is a worldwide movement of
national organizations working with and for communities and individuals.
AMERICAS
American Civil Liberties Union –
AIDS Project: www.aclu.org
Canadian HIV/AIDS Legal Network:
www.aidslaw.ca
Gestos (Brazil): www.gestospe.org.br
ASIA AND THE PACIFIC
“There is still an opportunity for advocates
and activists to resist this adoption of
criminal law responses. Now is a critical
time to resist this trend and promote public
health alternatives.”
Mike Kennedy, Executive Director Victorian AIDS
Council, Australia, 2008
Asia Pacific Network of People Living
with HIV APN+: www.apnplus.org
Australian Federation of AIDS
Organisations (AFAO):
www.afao.org.au
Lawyers Collective (India):
www.lawyerscollective.org
National Association of People Living
with HIV/AIDS Australia:
www.napwa.org.au/
Naz Foundation (India):
www.nazindia.org
EUROPE
African HIV Policy Network (UK):
www.ahpn.org
European Legal Database on Drugs:
www.eldd.emcdda.europa.eu/html.
cfm/indexEN.html
National AIDS Trust (UK):
www.nat.org.uk
Terence Higgins Trust (UK):
www.tht.org.uk
IPPF works towards a world where women, men and young people
everywhere have control over their own bodies, and therefore their destinies.
A world where they are free to choose parenthood or not; free to decide
how many children they will have and when; free to pursue healthy sexual
lives without fear of unwanted pregnancies and sexually transmitted
infections, including HIV. A world where gender or sexuality are no longer a
source of inequality or stigma. We will not retreat from doing everything we
can to safeguard these important choices and rights for current and future
generations.
THE GLOBAL NETWORK OF PEOPLE LIVING WITH HIV (GNP+)
GNP+ is a global network for and by people living with HIV. Its overall aim
is to improve the quality of life of people living with HIV. Its work is based
on a policy platform that promotes global access to HIV care and treatment,
ending stigma and discrimination, and greater and more meaningful
involvement of people living with HIV in decisions that affect their lives and
their communities.
THE INTERNATIONAL COMMUNITY OF WOMEN LIVING WITH
HIV/AIDS (ICW)
ICW is the only international network run for and by HIV-positive women. Its
purpose is to promote the many voices of women living with HIV and
advocate for changes that improve their lives. The work of ICW is framed by
a human rights strategy that focuses on three areas: gender equity; access
to care, treatment and support; and the right to meaningful involvement in
all decisions that affect the lives of women living with HIV.
“HIV is a virus, not a crime. That fact is elementary, and
all-important. Too often law-makers and prosecutors overlook it.”
IPPF
4 Newhams Row
London SE1 3UZ
United Kingdom
Tel: +44 20 7939 8200
www.ippf.org
GNP+
PO Box 11726
1001 GS Amsterdam
The Netherlands
Tel: +31 20 423 4114
www.gnpplus.net
ICW
Unit 6, Building 1
Canonbury Yard
190a New North Road
London N1 7BJ
United Kingdom
Tel: +44 20 7704 0606
www.icw.org
Edwin Cameron, Justice of the Supreme Court, South Africa, 2008
“For the foreseeable future we will never have an AIDS-free world,
but because of it we should have found a new way to live and to
love – becoming wiser and richer because of it. HIV must be
embraced, not feared.”
Nono Simelela, Director of Technical Knowledge and Support, IPPF, UK, 2008
“AIDS makes us angry. But in law we must be rational. We must take
as our guiding principle for law something more than the creation of
a response to a dangerous epidemic. We must look for effective and
just laws that contribute to slowing the spread of AIDS.”
Michael Kirby, Justice of the Supreme Court, Australia, 1995
VERDICT ON A VIRUS
PUBLIC HEALTH, HUMAN RIGHTS AND CRIMINAL LAW